Case BriefsSupreme Court Roundups


TOP STORIES


Maintenance of wife|Husband doesn’t have to pay maintenance in each of the proceedings under different Maintenance laws [Explainer on Supreme Court guidelines]

Supreme Court has framed guidelines on overlapping jurisdiction under different enactments for payment of maintenance, payment of Interim Maintenance, the criteria for determining the quantum of maintenance, the date from which maintenance is to be awarded, and enforcement of orders of maintenance.

Also read: Guidelines

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

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.

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

Appointments and functioning of Tribunals| Tribunal Rules 2020 valid but need modifications, National Tribunals Commission to be constituted; directs SC [Read Directions]

Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.

Also read: ‘It’s high time we put an end to the disturbing trend of Govt ignoring our directions.’ Read why Supreme Court directed constitution of National Tribunals Commission

All is not lost for Shiksha Mitras as SC dismisses their plea challenging 2019 Assistant Teachers’ recruitment process but asks UP Govt to give them a third chance

Uttar Pradesh Government can now fill up 69, 000 posts in terms of the result declared on 12.05.2020.

COVID-19| Seeking waiver of interest for loan during the moratorium period? SC asks Govt to implement decision to forego interest on 8 categories

All steps to implement the decision dated 23.10.2020 of the Government of India, Ministry of Finance be taken so that benefit to the eight categories contemplated in the affidavit can be extended.

COVID-19| ‘You can’t stop at issuing advisory’; SC directs Centre to ban the use of disinfection tunnels

In event, use of disinfectant on human body is to cause adverse effect on the health of the people, there has to be immediate remedial action.

Govt sits over land for 33 years without authority. SC directs handing over of land to owners within 3 months; says such lawlessness cannot be condoned

The courts’ role is to act as the guarantor and jealous protector of the people’s liberties: be they assured through the freedoms, and the right to equality and religion or cultural rights under Part III, or the right against deprivation, in any form, through any process other than law.

Nothing wrong with TRAI seeking information to ensure transparency; SC directs Airtel, Vodafone Idea to disclose segmented offers details to TRAI

SC has asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Are you a homebuyer planning to take builder to Court? SC says you can choose between seeking remedy under the RERA Act or the Consumer Protection Act

The RERA Act does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.


MORE STORIES


‘Law should not become a ruse for targeted harassment’; SC reminds Courts of their duty to ensure human liberty

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.

Candidate suppresses his over-qualification during recruitment process. Can he later contend that over-qualification can’t be a disqualification? Here’s what SC says

Employers prescribe qualifications to any post, not Courts.

PCS (Judicial) Exam| As 47 seats remain vacant, SC asks Justice AK Sikri & Justice SS Saron to re-check some papers in 2 subjects to gather what went wrong

“We propose to pass an order to satisfy our judicial conscious in the given scenario where only 28 people have been recruited in pursuance to an examination process where 75 vacancies existed.”

Thinking of seeking transfer of petition for restitution of conjugal rights under Section 21-A(2)(b) of the Hindu Marriage Act, 1955? SC says you can’t

Sub-section (2) of Section 21-A has no independent existence de hors Sub-section (1).

Signature obtained by fraud? Burden of proof is on the party alleging such forgery; says SC

For invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved.

No mention of intention to blacklist in the show cause notice? SC says such show cause notice and consequent blacklisting order liable to be quashed

Blacklisting can effectively lead to the civil death of a person.

Mere lack of State Government’s prior consent does not vitiate CBI investigation in absence of prejudice caused to accused; says SC

State of Uttar Pradesh has accorded a general consent for investigation of cases by CBI in the whole of UP.

Two men walk free after 12 years in prison as SC holds that conviction cannot be based solely on refusal to undergo a Test Identification Parade

The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.

Despite many witnesses turning hostile, SC finds man guilty of killing his wife in 1999; Says it’s not an unusual event in long drawn out trials in India

A large number of witnesses turning hostile is not an unusual event in the long drawn out trials in our country and in the absence of any witness protection regime of substance, one has to examine whatever is the evidence which is capable of being considered, and then come to a finding whether it would suffice to convict the accused.

Nominated person faces trial for 30 years in Dalda Ghee adulteration case while HUL never gets convicted. SC says either both get convicted or none

In the absence of the Company, the Nominated Person cannot be convicted or vice versa.

Timing of crime saves man from facing gallows or prison for the rest of his life for raping and killing 2.5 year old niece. SC commutes sentence under Section 376A IPC

In a chilling crime, a 21-year-old man was had raped and killed his 2.5 years-old niece just a week after the amended Section 376A was brought into force in the year 2013.

Not just the petitioning creditor but ‘any’ creditor can initiate transfer of winding up proceedings from a Company Court to NCLT; holds SC

Proceedings for winding up of a company are proceedings in rem to which the entire body of creditors is a party, hence, by a deeming fiction the petition by even a single creditor is treated as a joint petition.

High Court not obliged to frame substantial question of law if no error is found in First Appellate Court’s findings; says SC

The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law.

Can NSE realise withheld securities prior to expulsion or declaration of defaulter? SC discusses in detail

Vesting does not take place in favour of the Exchange unless a formal expulsion order is passed. The relevant point of time, therefore, is the date of expulsion. Without such legal vesting, the Exchange only sits upon the withheld assets as a custodian.

Is obstruction & abuse by upper caste person due to property dispute an offence under SC/ST Act? Not in all cases, says SC

The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste.

SC dismisses Tej Bahadur’s plea against rejection of his Nomination Papers to contest against PM Modi from Varanasi in 2019 Lok Sabha Polls

Ex-BSF Jawan Tej Bahadur’s nominations were rejected by the returning officer for want of a certificate to the effect that he has not been dismissed for corruption or disloyalty to the State.

2015 Guru Granth Sahib sacrilege| ‘No threat to the lives of accused or to fair trial’; SC refuses to transfer the trial outside Punjab

The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.

Remedy under Section 14 of SARFAESI Act does not become redundant if DM is unable to take possession of secured assets within time limit

The time limit is to instill a confidence in creditors that the District Magistrate will make an attempt to deliver possession as well as to impose a duty on the District Magistrate to make an earnest effort to comply with the mandate of the statute.

No relief to Skoda Volkswagen as SC refuses to quash FIR over alleged use of cheat devices

The law is well settled that Courts would not thwart any investigation.

Madras HC refuses to decide vires of Section 40(a)(iib) of the Income Tax Act pending assessment proceedings. SC disapproves the approach

Vires of a relevant provision goes to the root of the matter.

Railway Protection Force officer fails to detect & prevent thefts. SC answers if his compulsory retirement is justified or not

A police officer in the Railway Protection Force is required to maintain a high standard of integrity in the discharge of his official functions.

No reservation for in-service doctors in Super Specialty Medical Courses for the academic year 2020-2021; holds SC

The counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021.

Direct Recruits to Rajasthan’s Tax Assistant posts cry foul after Departmental Promotees appear senior. SC finds seniority justified

Keeping in mind that the advertisements for filling the entire cadre, in both the quotas or streams of recruitment were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies and also the completion of procedure, such as verification of antecedents, the seniority of the promotees given on the basis of their dates of appointment was justified.

Connection with agricultural land a must for homestead land & waterbodies to come within the purview of the WB Restoration of Alienated Land Act, 1973

Homestead land when included within the meaning of the term “land” in 1973 Act means homestead of an agriculturist and not any and every structure on non-agricultural land.


IN OTHER NEWS


Sharing links or screen of Video Conference hearings without authorisation? Be ready to face “adverse consequences”. SC cautions AORs, Parties-in-person

Mysterious discrepancy in case details and judgement files on Supreme Court’s website creates confusion

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]

Hot Off The PressNews

The Editors Guild of India has issued a statement on the arrest of Arnab Goswami, editor-in-chief of Republic TV.

Editors Guild of India is shocked to learn about the arrest of Arnab Goswami, editor in chief of Republic TV, in the early hours of Wednesday by the police. Goswami was arrested from his Mumbai residence on reportedly on abetment of suicide case.

EGI condemns the sudden arrest and found it extremely distressing.

Guild calls upon the Chief Minister of Maharashtra to ensure that Goswami is treated fairly and state power is not used against critical reporting by the media.


Editors Guild of India

[Press Statement dt. 04-11-2020]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., held that in light of investigations being carried out in the Sunanda Pushkar Case, Arnab Goswami is forbidden from making statements that he still has no doubt that Sunanda was murdered or that he had said to the plaintiff that the plaintiff should be extremely happy that he had promised to investigate who killed his wife, which insinuates the plaintiff to have committed murder which was forbidden by the Court in earlier Order dated 1-12-2017.

Through the present application, the plaintiff has placed a grievance relating to the broadcast on the defendant 1’s channel.

Plaintiff seeks an interim injunction against the defendants from making defamatory remarks against the plaintiff.

Counsel for the plaintiff submitted that broadcasts made by defendant 1 through the live telecast claiming that they have investigated Sunanda Pushkar’s case better than the police and that he still has no doubt that Sunanda was murdered.

On 1-012-2017, this Court had passed a detailed order wherein the plaintiff had sought an interim injunction.

Media Reporting 

In the above order passed by the Court, the High Court had clearly stated that,

“…when a criminal investigation is commenced, media reporting should be sensitive to the indeterminacy of the questions raised in the proceedings. Press cannot “convict anyone” or insinuate that he or she is guilty or make any other unsubstantiated claims. Press has to exercise care and caution while reporting about matters under investigation or pending trial.”

Decision

Bench on perusal of the above stated that in light of the investigation being carried out by a duly authorised and competent agency and a Court of competent jurisdiction having taken cognizance on the material which is the material collected during the course of the investigation as per law, the statements of the defendant 1 that he still has no doubt that Sunanda was murdered or that he had said to the plaintiff that the plaintiff should be extremely happy that he had promised to investigate who killed his wife are statements which insinuated the plaintiff to have committed murder as was forbidden by the decision of this Court dated 1-12-2017.

Hence, Court directed defendants to be bound by the statements made on their behalf by Senior Counsel as recorded vide Order dated 29-05-2017 and 01-12-2017 till the next date of hearing. [Dr Shashi Tharoor v. Arnab Goswami, CS (OS0 No. 253 of 2017, decided on 10-09-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ. while observing the matter in regard to quashing of FIR against Republic TV’s Editor-in-Chief, Arnab Goswami, Court held that,

“Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets.”

Present petition was filed to seek stay on all the proceedings in FIR filed against Arnab Goswami/ petitioner and no coercive action/steps to be taken by respondents 1, 5 and 6.

Background

Following the broadcasts on Republic TV dated 16-4-2020 and on R Bharat dated 21-4-2020, multiple FIR’s and criminal complaints were lodged against the petitioner — Arnab Goswami, Editor-in-Chief of Republic TV and the Managing Director of ARG Outlier Media Asia net News Private Limited which owns and operates R Bharat.

The broadcasts were in regard to an incident that occurred in Palghar District of Maharashtra wherein 3 persons including 2 sadhus were brutally killed by mob, allegedly in the presence of police and forest guard personnel. In the said broadcasts, petitioner had raised issues with regard to the tardy investigation of the incident.

Petitioner claimed that the Indian National Congress had after the said broadcast launched a “well coordinated, widespread, vindictive and malicious campaign” against him.

The said campaign by the INC was carried out through various news reports, tweets and multiple complaints against the petitioner seeking investigation into offences alleged to have been committed by him under Sections 153, 153-A, 153-B, 295-A, 500, 504, 506 and 120-B of the Penal Code, 1860. Campaign on social media using the hashtag — #ArrestAntiIndiaArnab was also doing rounds.

To affirm his claim, the petitioner also stated that the FIRs and complaints were lodged in the State where the Governments were formed owing allegiance to the INC.

Petitioner refused any propagation of communal views being broadcasted by him on the news channel that gave rise to the numerous complaints. Asserting his fundamental right to the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India, the petitioner approached the Court seeking protection.

Another petition was filed which was occasioned by registration of an FIR against the petitioner on 2nd May 2020 wherein it was stated that the petitioner had on 29th April 2020 made certain statements on his broadcast on R Bharat that “people belonging to Muslim religion are responsible for COVID-19 spread.”

Petitioner had moved the Supreme Court under Article 32 of the Constitution of India for quashing the FIR.

Supreme Court had issued the following directions in it’s Order:

  • Prayer to transfer the investigation to CBI is rejected.
  • Protection against coercive action granted to Arnab Goswami to continue for a period of 3 weeks to enable him to pursue remedies available in law.
  • FIR which has now been numbered as 164 of 2020 shall be investigated by the NM Joshi Marg Police Station in Mumbai.
  • Prayer for quashing FIR No. 164 of 2020 under Article 32 rejected.
  • The FIR does not cover the offence of defamation under Section 499 IPC, hence will not form subject matter of the investigation.
  • All FIRs except FIR No. 164 of 2020 at NM Joshi Police Station are quashed.
  • No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.
  • Based on the threat perception, CP (Mumbai) may provide police protection to Arnab Goswami if it is considered appropriate and for the period during which the threat perception continues.
  • Nothing in the present judgment to be considered as an expression on merits of the allegations in the FIRs.

Thereafter the present petition has been filed seeking certain reliefs.

Decision and Analysis

Bench firstly adverted to the Supreme Court’s decision in the present matter on 19th may, 2020, wherein the core issue was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action.

Supreme Court had stated that the manner in which the petitioner was subjected to numerous FIRs in several states besides the UT of J&K on the basis of identical allegations arising out of the same television show would leave no manner of doubt that its intervention was necessary to protect the rights of the petitioner as a citizen and as a journalist to a fair treatment.

In such a situation to require the petitioner to approach the jurisdictional High Courts for quashing of the FIRs would result in a multiplicity of proceedings and unnecessary harassment to the petitioner.

It was categorically held that all other FIRs in respect of the same incident constitute a clear abuse of the process and must be quashed.

Accordingly, all the other FIRs numbering 14 were quashed, further making it clear that no other FIR or complaint shall be initiated or pursued in any other forum in respect of the same cause of action.

Supreme Court did not express any opinion on the two impugned FIRs and that is how the challenge to the 2 FIRs has been placed before the High Court.

In the Supreme Court decision of State of Karnataka v. Muniswamy, (1977) 2 SCC 699, following was observed:

“…saving of the High Court’s inherent powers is designed to achieve a salutary public purpose; in a criminal case the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.”

Complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

Common thread alluded to the Sections that have been mentioned in the FIRs are with regard to promoting or attempting to promote disharmony or feelings of enmity, hatred or ill-will between different religious groups or communities etc.

Decoding the FIRs

According to the informant, petitioner had made a statement like two Hindu Sadhus were killed and asked whether in a country where 80% of the population are Hindus, is it a sin to be a Hindu or to wear saffron.

In contradistinction he asked whether Sonia Gandhi and the Congress party would have kept quiet if a Maulvi or Padri was killed. Then petitioner launched an attack on the foreign origin of Sonia Gandhi; asking whether “these people” thought that Hindus will keep quiet.

It is quite clear from the above stated that the target of the petitioner’s attack was primarily Sonia Gandhi and the Congress Party.

There was no mentioning of either the Muslim community or the Christian community. It would be too far- fetched to say that two religious communities were involved in the debate. As a matter of fact, there was no reference to the Muslim community or to the Christian community.

In Court’s opinion, if the transcript together with the first information are read as a whole, it was not found that any statement made by the petitioner which can be construed to be against the Muslim community or Christian community.

In such circumstances, it cannot be said that any offence has been committed by the petitioner of provoking rioting or promoting or attempting to promote, on the grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious groups which is prejudicial to the maintenance of harmony between different religious groups or which disturbs or is likely to disturb public tranquility, thus prejudicial to national integrity.

Neither any statement nor the conduct of the petitioner can be said to have been made deliberately and with malicious intention to outrage the religious feelings of any class of citizens of India or insulting any religion or religious beliefs of that class of citizens.

On an overall consideration, Court’s prima facie view was that the FIR No. 164 of 2020 did not make out commission of any criminal offence by the petitioner.

FIR No. 137 of 2020

Contents of this FIR were made by the officer in charge of Pydhonie Police Station, that petitioner had hatched criminal conspiracy in the programme of R. Bharat connecting Jama Masjid, Bandra with the crowd gathered near Bandra railway station thus making objectionable statements and hurting the religious feelings of the Muslim community; petitioner created religious hatred between two communities and increased enmity between them by insulting Muslim religion and their religious feelings; with the objective of committing communal atrocity, petitioner defamed the Muslim community.

According to the informant, petitioner had stated that at a little distance there was Jama Masjid in Bandra; near this Jama Masjid suddenly thousands of people had gathered. Then petitioner posed the question as to who had gathered the crowd near the masjid in Bandra and why every crowd gathering during the lockdown was near a masjid.

Petitioner tried to create the impression that Muslim community is violent and is not following any kind of law. Thus it was alleged that petitioner had hatched a conspiracy with the objective of creating hatred amongst Hindu and Muslim communities.

Court in the above-mentioned regard stated that it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms.

Bench referred to the Supreme Court’ observations that,

India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal; free citizens cannot exist when the news media is chained to adhere to one position.

We cannot have the spectacle of a Damocles’ sword hanging over the head of a journalist while conducting a public debate.

Beyond the above observations and analysis, Court did not comment further on the matter and passed the following orders:

  • Petition is admitted for hearing;
  • Issuance of notice stands obviated. However, office of the Attorney General for India be notified as regards challenge to vires of Sections 153A and 153B(1) IPC.
  • All further proceedings in FIR No.164 of 2020 before the N. M. Joshi Marg Police Station, Mumbai and FIR No.137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended
  • Interim order passed on 9th June, 2020 to the effect that no coercive steps shall be taken against the petitioner vis-a-vis the above 2 FIRs shall continue till disposal of the petition. [Arnab Ranjan Goswami v. State of Maharashtra, 2020 SCC OnLine Bom 732  , decided on 30-06-2020]

Also Read:

SC | FIR against Arnab Goswami not to cover offence of defamation (S. 499 IPC); Investigation to continue at NM Joshi Marg Police Station under Mumbai Police

Case BriefsSupreme Court

Supreme Court: A Division Bench of Dr Dhananjaya Y Chandrachud and M.R. Shah, JJ., while rejecting the Editor-in-Chief of Republic TV Arnab Goswami’s  prayer to transfer the investigation into FIR lodged against him to CBI, issued a series of directions which may be summed up as follows:

  • Prayer to transfer the investigation to CBI is rejected.
  • Protection against coercive action granted to Arnab Goswami to continue for a period of 3 weeks to enable him to pursue remedies available in law.
  • FIR which has now been numbered as 164 of 2020 shall be investigated by the NM Joshi Marg Police Station in Mumbai.
  • Prayer for quashing FIR No. 164 of 2020 under Article 32 rejected.
  • The FIR does not cover the offence of defamation under Section 499 IPC, hence will not form subject matter of the investigation.
  • All FIRs except FIR No. 164 of 2020 at NM Joshi Police Station are quashed.
  • No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.
  • Based on the threat perception, CP (Mumbai) may provide police protection to Arnab Goswami if it is considered appropriate and for the period during which the threat perception continues.
  • Nothing in the present judgment to be considered as an expression on merits of the allegations in the FIRs. 

Background

Following the broadcasts on Republic TV dated 16-4-2020 and on R Bharat dated 21-4-2020, multiple FIR’s and criminal complaints were lodged against the petitioner ? Arnab Goswami, Editor-in-Chief of Republic TV and the Managing Director of ARG Outlier Media Asianet News Private Limited which owns and operates R Bharat.

The broadcasts were in regard to an incident that occurred in Palghar District of Maharashtra wherein 3 persons including 2 sadhus were brutally killed by mob, allegedly in the presence of police and forest guard personnel. In the said broadcasts, petitioner had raised issues with regard to the tardy investigation of the incident.

Petitioner claimed that the Indian National Congress had after the said broadcast launched a “well coordinated, widespread, vindictive and malicious campaign” against him.

The said campaign by the INC was carried out through various news reports, tweets and multiple complaints against the petitioner seeking investigation into offences alleged to have been committed by him under Sections 153, 153-A, 153-B, 295-A, 500, 504, 506 and 120-B of the Penal Code, 1860. Campaign on social media using the hashtag ? #ArrestAntiIndiaArnab was also doing rounds.

To affirm his claim, the petitioner also stated that the FIRs and complaints were lodged in the State where the Governments were formed owing allegiance to the INC. 

Petitioner refused any propagation of communal views being broadcasted by him on the news channel that gave rise to the numerous complaints. Asserting his fundamental right to the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India, the petitioner approached the Court seeking protection.

Another petition was filed which was occasioned by registration of an FIR against the petitioner on 2nd May 2020 wherein it was stated that the petitioner had on 29th April 2020 made certain statements on his broadcast on R Bharat that “people belonging to Muslim religion are responsible for COVID-19 spread.”

Challenging the said FIR, the petitioner sought to invoke the jurisdiction of Court for quashing the said FIR and directing that no cognizance should be taken on any complaint or FIR on the same cause of action.

Submissions

Senior Counsel Harish Salve, on behalf of the petitioner, submitted that the petition raises “wider issues” implicating the freedom of speech and expression of a journalist to air view which fall with the protective ambit of Article 19(1)(a). Further adding to his submission, Mr Salve also stated that this Court should necessarily lay down safeguards which protect the democratic interest in fearless and independent journalism.

Solicitor General Tushar Mehta submitted that the investigation be handed over to CBI as the conduct of police in the present case has been disturbing.

Senior Counsel Dr Abhishek Manu Singhvi, on behalf of the investigating agency of the Maharashtra Police, submitted that: 

  • Facts of the present case clearly demonstrate that in the garb of an arc of protection, the accused is attempting to browbeat the police;
  • Interference in the course of an investigation is impermissible.
  • Though the petitioner is entitled to the fundamental rights under Article 19(1)(a), their exercise is subject to the limitations stipulated in Article 19(2).
  • Transfer of an ongoing investigation to the CBI has been held to be an extraordinary power which must be sparingly exercised in exceptional circumstances

Senior Counsel Kapil Sibal stated that in the exercise of the jurisdiction under Article 32, the Supreme Court may well quash all the other FIRs and allow the investigation into the FIR which has been transferred to the NM Joshi Marg Police Station in Mumbai to proceed in accordance with law.

Analysis

Multiplicity of FIRs

The Bench analysed that the law concerning multiple criminal proceedings on the same cause of action has been analysed in a Supreme Court decision in TT Anthony v. State of Kerala, (2001) 6 SCC 181, and held that there can be no second FIR where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences.

Further analysing the present matter, the Court held that barring situations in which a counter-case is filed, a fresh investigation or a second FIR on the basis of same or connected cognizable offence would constitute an “abuse of the statutory power of investigation”.

The Court on perusal of the various complaints and FIRs observed that they were worded in identical terms and thus in no manner leave a doubt that an identity of cause of action underlies the allegations levelled against the petitioner. Moreover, the language, content and sequencing of paragraphs and their numbering was identical.

Further with regard to numerous proceedings Court went on to say that, subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate state aim in prosecuting crime.

Journalistic Freedom

India’s freedoms will rest safe as long as journalists can speak truth to power without being chilled by a threat of reprisal.

The Court stated that “the exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a).” However, it was also stated that the right of journalists under Article 19(1)(a) is no higher than the right of the citizen to seek and express.

Free citizens cannot exist when the news media is chained to adhere to one position.

Considering all the aspects, in the present case, the Court thought necessary to intervene to protect the rights of the petitioner as a citizen and as a journalist to fair treatment and liberty to conduct an independent portrayal of views.

Transfer of investigation to CBI

It was noted that the precedents of the Supreme Court emphasise that transferring of investigation to CBI is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances”.

Further the Bench opined that one factor that courts may consider is that such transfer is “imperative” to retain “public confidence in the impartial working of the State agencies”.

Reiterating the principle laid down in the decision of Romila Thapar v. Union of India, (2018) 10 SCC 753, the Court opined that accused does not have a say in the matter of appointment of investigating agency. Reliance was placed on a number of Supreme Court’s earlier decisions.

The Court held that so long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation.

Having analysed all the aspects, the Court issued the directions as mentioned above.[Arnab Ranjan Goswami v. Union of India,  2020 SCC OnLine SC 462 , decided 19-05-2020]

Case BriefsSupreme Court

Supreme Court: The bench Dr DY Chandrachud and MR Shah, JJ has refused to transfer to CBI the criminal cases lodged against Republic TV Editor in-Chief Arnab Goswami for alleged defamatory news show telecast on April 21 in connection with the Palghar mob-lynching case. It also quashed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has been transferred to Mumbai via order dated 24.04.2020. The Court, however, held,

“The petitioner would be at liberty to pursue such remedies as are available in law under the CrPC before the competent forum. Any such application shall be considered on its own merits by the competent court”

The Court further directed that the protection granted to the Goswami on 24 April 2020 against coercive steps be extended for a period of three weeks to enable him to pursue the remedies available in law. It also asked the CP, Mumbai to consider the request of Goswami for the provision of security at his residence and business establishment in Mumbai, in accordance with law.

“Based on the threat perception, police protection may be provided if it is considered appropriate and for the period during which the threat perception continues.”

Factual Background

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quiet if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were Muslim.Goswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

On refusing to transfer the matter to CBI

On the scope of power to transfer the case to CBI, the  no inflexible guidelines are laid down, the notion that such a transfer is an “extraordinary power” to be used “sparingly” and “in exceptional circumstances” comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation.

“An accused person does not have a choice in regard to the mode or manner in which the investigation should be carried out or in regard to the investigating agency.”

The Court considered the fact that Goswami had requested for and consented to the transfer of the investigation of the FIR from the Police Station Sadar, District Nagpur City to the NM Joshi Marg Police Station in Mumbai. He did so because an earlier FIR lodged by him at that police station was under investigation. The Court was irked by the fact that Goswami now sought to preempt an investigation by the Mumbai police on untenable grounds.

Grounds on which transfer was sought

    1. The length of the interrogation which took place on 27 April 2020;
    2. The nature of the inquiries which were addressed to the Petitioner and the CFO and the questions addressed during interrogation;
    3. The allegations leveled by the petitioner against the failure of the State government to adequately probe the incident at Palghar involving an alleged lynching of two persons in the presence of police and forest department personnel;
    4. Allegations which have been made by the petitioner on 28 April 2020 in regard to CP, Mumbai; and
    5. Tweets on the social media by activists of the INC and the interview by the complainant to a representative of R Bharat.

Noticing that as long as the investigation does not violate any provision of law, the investigation agency is vested with the discretion in directing the course of investigation, which includes determining the nature of the questions and the manner of interrogation, the Court said,

“The line of interrogation either of the petitioner or of the CFO cannot be controlled or dictated by the persons under investigation/interrogation”

It was noticed that though an individual under investigation has a legitimate expectation of a fair process which accords with law,

“The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI.”

On quashment of all but one FIR

The Court stated that the filing of multiple FIRs arising out of the same telecast of the show hosted by the petitioner is an abuse of the process and impermissible. Hence, stating that it has not gone into the merits of any of the FIRs, the Court directed,

“No other FIR or, as the case may be, complaint shall be initiated or pursued in any other forum in respect of the same cause of action emanating from the broadcast on 21 April 2020 by the petitioner on R Bharat.”

It, further, clarified that any other FIRs or complaints in respect of the same cause of action emanating from the broadcast on 21 April 2020, other than the FIRs or complaints quashed by the Court, are also not maintainable.

On non-quashment of FIR transferred to Mumbai from Nagpur

The Court noticed that the FIR which is now under investigation at the NM Joshi Marg Police Station in Mumbai does not and cannot cover any alleged act of criminal defamation.

It, hence, said that it would be inappropriate for the court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR under investigation at the NM Joshi Marg Police Station in Mumbai considering that the checks and balances to ensure the protection of the Goswami’s liberty are governed by the CrPC.

It further took note of the fact that despite the liberty being granted to Goswami on 24 April 2020, he did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. Stating that Goswami has an equally efficacious remedy available before the High Court, the Court said that he must be relegated to the pursuit of the remedies available under the CrPC.

It, however, clarified,

“We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at the NM Joshi Police Station in Mumbai which can be considered by the High Court.”

[Arnab Ranjan Goswami v. Union of India, 2020 SCC OnLine SC 462 , decided on 19.05.2020]


Also read: 

SC grants 3 weeks protection from arrest to Arnab Goswami; stays all but one FIR

Verdict reserved; Goswami’s interim protection extended till the delivery of judgment

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has reserved it’s judgment in the petition filed by Republic TV editor Arnab Goswami, challenging the FIRs registered against him in various parts of the country for alleged defamation of Congress President Sonia Gandhi. While doing so, it directed,

“Until the judgment is pronounced by this Court, the protection which was granted to the petitioner in paragraph 13(iv) of the order dated 24 April 2020 shall continue to remain in operation.”

On April 24, 2020, the Court had granted 3 weeks of interim protection and no coercive action against the petitioner, Arnab Goswami and had further directed,

“For a period of three weeks, the petitioner shall be protected against any coercive steps arising out of and in relation to the above FIR arising out of the telecast which took place on 21 April 2020.”

Resultantly, the Court had stayed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has now been transferred to Mumbai

Factual background

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quite if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were Muslim. Goswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

[Arnab Ranjan Goswami v. Union of India, 2020 SCC OnLine SC 450 , order dated 11.05.2020]

Case BriefsSupreme Court

Supreme Court: In the petition filed by Republic TV editor Arnab Goswami, challenging the FIRs registered against him in various parts of the country for alleged defamation of Congress President Sonia Gandhi, the bench of Dr. DY Chandrachud and MR Shah, JJ has granted 3 weeks of interim protection and no coercive action against the petitioner, Arnab Goswami. He can move an anticipatory bail application in three weeks

“For a period of three weeks, the petitioner shall be protected against any coercive steps arising out of and in relation to the above FIR arising out of the telecast which took place on 21 April 2020.”

Resultantly, the Court stayed all FIRs against Arnab Goswami except one which was filed in Nagpur and which has now been transferred to Mumbai.

“further proceedings shall remain stayed, pending further orders of this Court, in respect of any other FIR or, as the case may be, criminal complaint which has been filed or which may be filed hereafter, with respect to the same incident”

Directing Mumbai Police Commissioner to provide security to Arnab Goswami and Republic TV, the Court said,

“In addition to the personal security provided to the petitioner, if a request is made by the petitioner to the Commissioner of Police, Mumbai for providing adequate security at the residence of the petitioner or at the studio of Republic TV in Mumbai, such a request shall be expeditiously considered and, based on the threat perception, police protection shall be provided, if considered appropriate and for the period during which the threat perception continues.”

The Court kept the following considerations kept in mind while granting the abovementioned relief to Arnab Goswami:

  • The need to ensure that the criminal process does not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause in multiple States;
  • The need for the law to protect journalistic freedom within the ambit of Article 19(1)(a) of the Constitution;
  • The requirement that recourse be taken to the remedies available to every citizen in accordance with the Code of Criminal Procedure 1973;
  • Ensuring that in order to enable the citizen to pursue legal remedies, a protection of personal liberty against coercive steps be granted for a limited duration in the meantime;
  • The investigation of an FIR should be allowed to take place in accordance with law without this Court deploying its jurisdiction under Article 32 to obstruct the due process of law; and
  • Assuaging the apprehension of the petitioner of 7 a threat to his safety and the safety of his business establishment.

During the hearing, Senior Advocate Kapil Sibal, appearing for Maharashtra, told the Court

“You are creating communal violence by citing such statements, if FIRs have been registered, how can you quash it at this stage? Let the people be investigated, what is wrong in it?”

Advocate Vivek Tankha, appearing for Chhattisgarh Government, sought for a restraint order on Arnab Goswami from making such statements.

Justice Chandrachud said,

“Speaking for myself I believe there should be no restraint on the media. I am averse to imposing any restrictions on media”.

Goswami had attacked Sonia Gandhi in one of his shows on Republic TV and had claimed that she had orchestrated the Palghar lynching in Maharashtra, where 3 Hindu religious leaders, who were on their way to Silvassa on April 16, were lynched by local residents on the suspicion that they were thieves. He questioned Sonia Gandhi’s silence over the incident and asked if she would have been quite if Muslim or Christian religious leaders would have been lynched instead of Hindu leaders.

After the incident was given a communal angle, Maharashtra Home Minister Anil Deshmukh shared the list of 101 people taken into custody in connection with the lynching, and said none of those arrested were MuslimGoswami later attacked Congress for orchestrating an attack on him and his wife in Mumbai after they were returning from work.

[Arnab Ranjan Goswami v. Union of India, WRIT PETITION(CRIMINAL) Diary No(s).11006/2020, order dated 24.04.2020]