Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court failed to  to evaluate even prima facie of the most basic issue thereby refusing bail to the accused, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has reminded the High Courts and District Courts of their duty to ensure human liberty.

In the judgment running into 55-pages, here is what the Court said:

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“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. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“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. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. 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.”

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment. Read more about him here

Also read: Anvay Naik Suicide|High Court abdicated it’s duty by failing to make prima facie evaluation of FIR. Here’s why SC granted interim bail to the accused

SC grants interim bail to 3 accused in Anvay Naik suicide case. Calls Bombay HC order erroneous

Case BriefsSupreme Court

“Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

Supreme Court: After Feroz Mohammad Shaikh, Arnab Goswami and Neetish Sarda were granted interim bail on November 11, 2020 in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the bench of Dr. DY Chandrachud* and Indira Banerjee, JJ has in it’s detailed judgment held that the Bombay High Court, in it’s 56-pages-long verdict, failed to evaluate even prima facie of the most basic issue.

“The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task.”

The Court had, in order dated 11.11.2020 said that

“… the High Court was in error in rejecting the applications for the grant of interim bail.”


Background


The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Arnab Goswami was arrested on 4 November 2020 under Sections 306 and 34 of the IPC. It was alleged that Goswami, the owner of ARG, had not paid an amount of Rs. 83 lacs and there was an outstanding amount of Rs. 4 crores from Feroz Shaikh and Rs. 55 lacs from Nitesh Sarda.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

It was Goswami’s case before the Supreme Court that his arrest was rooted in malice in fact, which was evident from the manner in which he has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police. Several incidents leading up to the arrest were highlighted including FIRs lodged against him for alleged defamatory news show telecast on April 21 in connection with the Palghar mob-lynching case where he attacked Sonia Gandhi for orchestrating the incident; issuance of a letter by the ―Shiv Cable Sena to cable operators across Maharashtra asking them to ban the telecast of Republic TV; TRP Scam case, etc.


Analysis


Jurisdiction of the High Court under Article 226 and Section 482 CrPC

Bombay High Court, relying on decision in State of Telangana vs Habib Abdullah Jeelani, (2017) 2 SCC 779, had declined to even prima facie enquire into whether the allegations contained in the FIR, read as they stand, attract the provisions of Section 306 read with Section 34 of the IPC, stating that since the petition was being posted for hearing on 10 December 2020, it was not inclined to enquire into this aspect of the case and the appellant would be at liberty to apply for regular bail under Section 439.

The Court, hence, discussed the true import of Habib Jilani decision and said that the said decision arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law.

“Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out.”

Prima Facie evaluation of the FIR and the grant of bail

While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court.

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations

Applying the factors to the case at hand, the Court noticed 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 appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses.

“If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage.”

Human liberty and the role of Courts

“In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty.”

Fair Investigation

The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one – and a significant – end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.

The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive.

“Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Procedural hierarchy of Courts

The procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. The High Court has the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met.

“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. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

Emphasizing on the role of the district judiciary, which provides the first point of interface to the citizen, the Court said,

“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. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.

“Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.”

Data reflecting pending Bail applications in High Courts and District Courts across India

Noticing that 15,54,562 bail applications are currently pending in High Courts and District Courts across India, the Court said that

“The Chief Justices of every High Court should in their administrative capacities utilize the ICT tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. 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.”


Direction


The interim protection which has been granted to the above accused by the order dated 11 November 2020 shall continue to remain in operation pending the disposal of the proceedings before the High Court and thereafter for a period of four weeks from the date of the judgment of the High Court, should it become necessary for all or any of them to take further recourse to their remedies in accordance with law.

[Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine SC 964, decided on 27.11.2020]


*Justice Dr. DY Chandrachud has penned this judgment 

For Arnab Goswami: Senior Advocate Harish N. Salve

For Respondents: Senior Advocates Kapil SIbal, Amit Desai and CU Singh

For Feroz Shaikh: Senior Advocate Gopal Sankaranarayanan

For Neetish Sarda : Senior Advocate Mukul Rohatgi

Case BriefsSupreme Court

Supreme Court: After a day-long hearing in the matter relating to the arrest of Republic TV Editor-in-Chief Arnab Goswami, Feroz Mohammad Shaikh and Neetish Sarda in relation to the alleged suicide of Anvay Naik and his mother Kumud Naik, the vacation bench of Dr. DY Chandrachud and Indira Banerjee, JJ has directed the release of all three on interim bail.

The Court had further directed that all three will be released subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. It also directed them to cooperate in the investigation of the matter and not to make any attempt to interfere with the ongoing investigation or with the witnesses.

The matter was listed on urgent basis during Diwali break of the Supreme Court, appealing against the Bombay High Court decision dated 9 November 2020, by which the applications for the grant of the interim bail moved by the appellants pending the disposal of their writ petitions were rejected.

The Court said,

“… the High Court was in error in rejecting the applications for the grant of interim bail.”

While the detailed judgment with reasons will follow, the Court has asked the jail authorities and the Superintendent of Police, Raigad to ensure the compliance of this order.

The matter relates to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ The deceased had allegedly left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues.

The Bombay High Court had, on November 9, held that no case for release of accused was made out.

[Arnab Manoranjan Goswami v. State of Maharshtra,  2020 SCC OnLine SC 931, order dated 11.11.2020]


Read the detailed analysis of the Bombay High Court judgment here.

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., while denying interim protection to Arnab Goswami in a case of alleged abetment to suicide discussed the essence of “Power of Superintendence”.

The instant application was filed for interim protection in a criminal petition filed for a Habeas Corpus to produce the petitioner who had been illegally arrested and wrongfully detained by the Alibaug Police Station in regard to an FIR registered under Sections 306 and 32 of the Penal Code, 1860 despite a closure report being filed.

Petitioner alleged gross abuse of State’s power by respondents in effecting his arrest and consequent alleged illegal detention.

Senior Advocate Harish Salve for the petitioner, Senior Advocate Amit Desai for State and Senior Advocate Shirish Gupte appearing for the victim.

Senior Advocate Harish Salve contended that not only the arrest is a malafide action and abuse of the State’s power, but the arrest is ex-facie illegal in view of the closure report filed before the Magistrate.

Re-investigation commenced by respondents was being conducted without any permission of the Magistrate under Section 173(8) of the Criminal Procedure Code, 1973.

Court shall exercise its extraordinary powers under Article 226 of the Constitution of India and inherent jurisdiction under Section 482 CrPC by protecting the petitioner.

Reference to the FIR | Alleged Suicide

 The FIR dated 05-05-2018 was in relation to the alleged suicide committed by Anvay Naik and his mother Kumud Naik who were Directors of an interior design company ‘Concorde Design Pvt. Ltd.’ It was alleged that the deceased had left behind a note wherein it was stated that they were committing suicide on account of the non-payment of CDPL’s dues. Officers of the Alibaug Police Station visited the petitioner’s office informing him about the unfortunate incident and stated that the suicide note had the name of the petitioner.

Senior Advocate Salve submitted that in blatant violation of the fundamental rights to life and personal liberty of the petitioner and his dignity, the petitioner was arrested. He was forced out from his residence with police officials barging into his house and dragging him into the police vehicle. Even his son was assaulted in this process.

Brazen attempt of vendetta politics

Senior Advocate urged that once the case was closed by Mumbai Police in the year 2019, which report was also accepted by the Chief Judicial Magistrate, the same is being reinvestigated with the sole purpose of misusing the power, concocting facts and forcefully arresting the petitioner in a prima facie act of revenge and vengeance for his news coverage which questioned those in power in the State of Maharashtra.

He added to his submission that there is a desperation on the part of the political dispensation to falsely implicate the petitioner in the said case and to reopen the matter.

Since there was no direct involvement of the petitioner with the deceased, the ingredients to attract the offence of abetment were also absent.

Cases relied upon by the Senior Advocate to support his submissions were:

Arjunan v. State, (2019) 3 SCC 315

Mohan v. State, (2011) 3 SCC 626

SS Cheena v. Bijay Kumar Mahajan, (2010) 12 SCC 190

Amlendu Pal v. State of West Bengal, (2010) 1 SCC 707

Gurcharan Singh v. State of Punjab, Supreme Court of India Criminal Appeal No. 40 of 2011

Rajesh v. State of Haryana, 2019 SCC OnLine SC 44

Adding to his contentions, Senior Advocate also submitted that once a case is closed by the Chief Judicial Magistrate, then the Investigating Officer has no power to re-investigate the matter unless the order granting ‘A’ summary by Chief Judicial Magistrate is set aside.

If re-investigation itself is on an illegal premise, the detention of the petitioner has to be declared as illegal.

Mr Salve further contended that the manner in which false cases are being registered against the petitioner and his channel and the apparent desperation of the political dispensation to implicate the petitioner in false cases, would justify an exercise of power of the High Court to stay the investigation and prevent the abuse of process and promote the ends of justice.

Analysis, Law and Decision

In the light of the law laid down by the Supreme Court in the case of State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC 745, the question as to whether a Writ of Habeas Corpus could be maintained in respect of a person, who is in police custody pursuant to the remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, is no more res integra.

Bench referred to the decision of Supreme Court in Serious Fraud Investigation Office v. Rahul Modi, (2019) 5 SCC 266, wherein the High Court had released the original petitioners on bail while exercising writ jurisdiction. Supreme Court had allowed the appeal filed by the Serious Fraud Investigation Office and original writ petitioners and directed to surrender before the Special Court.

Adding to its analysis, Court stated that the issue as to the exercise of jurisdiction by the High Court in a proceeding relating to the quashing of First Information Report has been authoritatively dealt with in the case of State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779. In the cited case, parameters as to the circumstances and situations where the Court’s inherent power can be exercised were clarified.

Bench in the instant matter opined that the High Court has jurisdiction to quash the investigation and pass appropriate interim orders as though apposite law. Though, powers are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law.

“The legislature has provided specific remedy under Section 439 CrPC for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under Section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while the entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure.”

Power of Superintendence

Court stated that in light of the relevant provisions, State Government in exercise of its powers directed the local Crime Investigation Branch, Raigad—Alibag to conduct further investigation of the said offence.

Supreme Court in its’ decision of State of Bihar v. J.A.C Saldanha,, (1980) 1 SCC 554  explained the concept of power of superintendence:

“17. The High Court construed the expression ‘superintendence’ in S. 3 of the Act to mean ‘general supervision of the management of the police department and does not vest the State Government with authority to decide what the police alone is authorised to decide’. There is nothing in the Act to indicate such a narrow construction of the word ‘superintendence’. Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investigation if the circumstances so warrant and there is nothing in the Code providing to the contrary so as to limit or fetter this power.”

Hence, in view of the above, Court stated that the State Government can always direct a further investigation to the police officers concerned.

Rule 219 of the Bombay Police Manual, 1959

Clause (3) of the above stated Rule would indicate that “A” summary is granted in a case where the offence is committed but the same is undetected, in that, where there is no clue whatsoever about the culprits or property or where the accused is known but there is no evidence to justify the same for being sent to the Magistrate (trial).

In the instant case, jurisdictional Magistrate classified the case and issued “A” summary in this case. Consequent upon receiving instructions pursuant to the complaint made by the victim to the superiors, the local Crime Branch intimated the jurisdictional Magistrate that they wanted to the carry out further investigation in the offence.

“A distinction also exists between further investigation and reinvestigation. It is observed that whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”

Court holds that the Magistrate was intimated about the further investigation and even statements were recorded under Section 16 CrPC after obtaining permission from Chief Judicial Magistrate.

Hence further investigation cannot be held as illegal and without seeking permission of the Magistrate. Same is in consonance with the power conferred by Section 173(8) CrPC.

Informant had filed the representation to the State Government and police officers for redressal of her grievance.

Bench further considered the decision of the Supreme Court in Vinubhai Haribhai Malaviya v. State of Gujarat, 2019 SCC OnLine SC 1395 considered the fact situation as to whether post-cognizance, the Magistrate is denuded of is powers of further investigation.

In the instant matter, post-filing of “A” summary, an intimation was given to the Magistrate by the Investigating Officer that they were carrying out further investigation whereafter, even the statements under Section 164 of the Code of Criminal Procedure were recorded by the Magistrate concerned pursuant to the directions issued by the Chief Judicial Magistrate.

“The continuous persuasion of the State Government by the informant for redressal of her grievance since her two family members had committed suicide, and in the aforesaid background, the concerned Investigating Officer, after intimating the Magistrate, commences the further investigation, cannot be said to be irregular or illegal by any stretch of imagination.”

Stay the Investigation

Supreme Court’s decision in State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335, was referred, wherein it was held that,

“That the core of the Sections 156, 157 and 159 of the Code of Criminal Procedure is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether that the field of investigation of any cognizable offence is exclusively within the domain of the investigation agencies over which the Courts cannot have control and have no power to stiffle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.”

(emphasis supplied)

In such view of the matter and since the writ petitions have been posted for hearing on 10-12-2020, Court declined to stay the investigation.

Therefore, the Bench held that no case for release of the applicant was made out. Petitioner has an alternate and efficacious remedy under Section 439 CrPC to apply for regular bail. [Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 2615, decided on 09-11-2020]