How Arnab Goswami Jumped the Gun – And Got His Bail Plea Rejected

Legal team of Harish Salve & Abad Ponda failed to convince HC there was a need for it to exercise writ jurisdiction.

What the Bombay High Court’s decision to reject bail for Arnab Goswami was based on.

(Photo: Aroop Mishra/The Quint)

The easiest way to sum up the Bombay High Court’s order refusing to grant Arnab Goswami interim bail in the 2018 abetment of suicide case against him is: ‘You jumped the gun.’

Of course, that’s not literally what they said. The exact wording of the order by Justices MS Karnik and SS Shinde is as follows:

“In the facts of the present case, no case is made out for release of the applicant – petitioner under extra-ordinary writ jurisdiction ... In our opinion, the petitioner has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail.”

Bombay High Court order dated 9 November

But the point is basically the same; this was a case of premature, uh, application.

Goswami came to the high court asking it to use its powers under its writ jurisdiction (mainly meant to protect fundamental rights) to give him bail – when he could have simply followed the regular procedure for bail instead, and approached a sessions court. Since that approach would be equally fair, that’s where he should go to get out of jail.

Now you might think that this is an unnecessarily formalistic and technical approach. If a citizen has been deprived of their fundamental right to liberty illegally, shouldn’t the constitutional courts use their powers to set them free (at least on an interim basis), regardless of what formalities have been followed?

Well, yes, that is indeed what the writ of habeas corpus is meant to do, after all.

Notwithstanding the fact that the apex court in particular seems to have forgotten all jurisprudence on habeas corpus (ask Mehbooba Mufti or any of the Kashmiris who tried to approach the Supreme Court, for instance), this does, however, require the petitioner to show that they have been arrested illegally, and that the authorities have messed things up.

You can’t just saunter up to the constitutional courts in every case where a person has been arrested and say injustice has been done – you have to explain why that jurisdiction needs to be exercised, why the arrest was problematic and so the judges need to ignore the regular bail procedure which would otherwise be followed.

And that’s where Arnab’s heavy-hitting legal team didn’t succeed.

Senior advocates Harish Salve – who has been having to get up early in London to argue cases for Arnab almost every day – and Abad Ponda, tried to establish two key things during their arguments from Thursday to Saturday last week:

1. Arnab’s arrest was illegal because the whole current investigation is illegal. The local police had filed a closure report back in April 2019, that had been accepted by a magistrate on 16 April 2019. As a result, the investigation could only be taken up again after a magistrate gave permission for the case to be re-opened, for which they also cited some previous SC and high court cases.
2. Implicating Arnab in this abetment of suicide case is baseless, as proving the offence requires intention and a proximate act – which the allegations in the FIR don’t really disclose. Instead, this case is just the latest salvo in the Maharashtra government’s vendetta against the Republic editor-in-chief.

They even had what seemed like a trump card when it came to these two points: The order of the magistrate on 4 November who had sent Goswami to judicial custody.

Though she had sent Arnab to judicial custody, she had refused the police’s request for police custody (ie, keeping him in police lock-up for interrogation) because she found that Arnab’s arrest “seemed illegal” thanks to the closure report fiasco, and there didn’t seem enough to really build a case for abetment of suicide here.

Unfortunately for Arnab and his legal team, this trump card proved to be about as successful as, well, the man himself. [Sleepy Joe Biden sends his regards.]

The Investigation-Was-Illegal-So-Arrest-Was-Illegal Argument

First off, the high court disagreed entirely with this proposition that the police had needed permission from a magistrate to get back to investigating the case. The court held that what was happening here was a ‘further investigation’, not a ‘reinvestigation’. And the police have powers of ‘further investigation’ under Section 173(8) of the Code of Criminal Procedure.

All that’s needed for them to get back in the saddle is an appropriate administrative decision – here the order to investigate had come from the Maharashtra government, which has superintendence over the state police, in May 2020. The police had, in fact, let a local magistrate know when they were continuing their inquiries in October, who had noted this, and witnesses were giving statements in front of the magistrate.

The court also agreed with senior advocate Amit Desai, who was representing the state of Maharashtra, that the judgments Arnab’s legal eagles had cited to claim that a magistrate’s permission was necessary were not, um, relevant to this case as they dealt with a court’s power to order investigation, not a situation where the state was looking to investigate further. [Para 62].

On top of this, the judges also noted that the closure report could not have been accepted by the magistrate back in April 2019 as they had not given the victims’ family a chance to oppose the closure report – a requirement according to two decisions of the Supreme Court.

So, this whole falooda about the investigation being illegal and so the arrest was illegal was, well, falooda. [Para 59. Ok, ok, they didn’t use the totally technical term falooda, but they said this argument couldn’t be used.]

The FIR-Discloses-No-Offence Argument

Next, the judges rather unceremoniously nixed the whole argument that no offence was made out against Arnab in the FIR at this time. “The said submission deserves no consideration at this stage when the investigation is in progress and the alleged suicide note recovered by the Investigating Officer mentions the name of the petitioner.”

Oh yes, the suicide note by the deceased in this case, Anvay Naik (and his mother Kumud Naik), lists Arnab Goswami and two other people as having not paid them huge sums of money, which has left them in financial distress, and so they are taking their lives. Sure, that suicide note isn’t enough to obtain a conviction, but as the judges held, the police were still investigating the case.

This argument would certainly be relevant at the time of trial, or even when arguing for quashing of the FIR (to be heard on 10 December), but it is not relevant when trying to decide whether the high court needs to decide whether it needs to invoke its Article 226 powers to grant interim bail.

And so, the gun was not just jumped but pole-vaulted over (which shouldn’t be a surprise for anyone who has been subjected to watched Arnab’s shows).

Because those two key arguments went as poorly as they did, Arnab had failed to provide any pressing reasons for the court to exercise its extraordinary writ jurisdiction. Which meant the court had to see if there had been any impediment to him just filing for regular bail like normal people – and nope, there had been nothing to stop him.

All the time this drama had been playing out on Cisco Webex, the Republic TV head honcho could have just filed a regular bail application before the sessions court under Section 439 of the CrPC, but had, well, not. Not till the morning of 9 November, that is.

And so, while Arnab and his many devoted followers may not think of him as a normal person, the high court saw no reason to give him any special treatment, and told him that regular bail was an “efficacious remedy” for him. Wait, it did in fact give him some special treatment: The judges directed the sessions court at Alibaug to decide his bail application within four days from it being filed.

How bad a car crash is this whole fiasco for the big man? The nation wants to know, surely?

While this order isn’t pretty for the man who asks tough questions of the government powerful corporate interests the Opposition and Bollywood actors and various lobbies, it may not necessarily be that big a deal in the long run.

The judges specifically clarified that their observations are prima facie in nature and only apply to the application for interim relief. They cannot be cited as conclusive arguments in either the bail proceedings before the sessions court, or in the high court during the FIR quashing proceedings.

The high court order has even avoided interfering with the magistrate’s observations in the judicial custody order (despite making entirely contrary findings), since the Maharashtra government has already filed a revision application against it.

The sessions court will be hearing the bail plea filed by Goswami on Tuesday, 10 November, itself, and will need to decide it by Friday.

The legal arguments, as recognised by the high court’s order, may not be quite as stacked in his favour as his legal team and his legions of hashtag-trending supporters believe. However, he has a fair shot of making bail, as long as the police can’t make a compelling case to show he could threaten/influence witnesses, notwithstanding what the high court said in this order.

I mean, remember how easily P Chidambaram got bail, right? In a case which didn’t even involve the death of a person, where the evidence was mostly documentary and already in the investigators’ possession, where there was little chance of absconding because he was a public figure? Or how easy it was for Prashant Kanojia, another journalist arrested for a crime that had nothing to do with his journalistic work, to get bail, right?

Right.