The Bombay High Court on Monday, 9 November, denied Arnab Goswami’s plea to be released from jail, and instructed him to apply to a sessions court for regular bail.
Even after making such a regular bail application and getting a hearing within a day, Goswami has promptly moved the Supreme Court to challenge the high court’s order, rather than wait to see what the sessions court holds. A vacation bench of Justices DY Chandrachud and Indira Banerjee of the apex court will take up the matter around 10:30 am on Wednesday, 11 November.
This no doubt plays into the narrative that has been deployed through Republic TV and even ministers of the central government (normally happy to drown out dissenting voices, much like Goswami), that this is an assault on “civil liberties”.
However, the fact is that Goswami had taken an ill-conceived course of action, asking the court to grant interim bail to him while his main petitions for habeas corpus and quashing the FIR against him, were heard.
The Bombay High Court’s order recognising the flaws with this approach is reasonable, lawful and entirely too generous in directing the sessions court to decide any regular bail plea by the Republic TV editor-in-chief within four days.
As a result, on law at least, he is unlikely to have much success challenging this order in the Supreme Court.
A PETITION THAT WAS MISGUIDED FROM THE START
The High Court begins by noting a crucial, undisputed fact – that the petition for habeas corpus, which was crucial to Goswami’s request, had been filed after a Magistrate issued a judicial order sending Goswami to custody.
A petition for habeas corpus is not maintainable when a person is in custody on the basis of a remand order passed by a Magistrate having jurisdiction over the alleged offence.
That order can be separately appealed, but a writ of habeas corpus is a specific remedy against an illegal detention, such as when a person is arrested and not produced before a judge within the statutory time limit. It would also apply when a person is detained without any information as to the grounds for such detention, even under a preventive detention law.
The law on this point – laid down in SC judgments in the Tasneem Rizwan Siddique (2018) and Saurabh Kumar (2014) cases – is explicit. As a result, the Bombay High Court has correctly applied it to come to a preliminary view that Goswami was, from the start, seeking an inapplicable remedy.
A FALSE EQUIVALENCE
Goswami attempted to incorrectly rely on the Supreme Court’s order in Jagisha Arora v. State of U.P. (2019). In June 2019, journalist Prashant Kanojia was taken from his house in Delhi and carted across state lines to Lucknow by plainclothes officers of the Uttar Pradesh Police, with no helpful cameras recording the ordeal.
The officers did not identify themselves, produce an arrest memo, or even offer an oral explanation for their actions. Six hours later, the police acknowledged that he’d been arrested on account of social media posts with references to the Chief Minister of UP.
Because he’d been taken to a different state, a transit remand order should have been obtained, which was not done. His wife filed a petition for habeas corpus before he was produced before any Magistrate, to her knowledge.
By contrast, Goswami’s photographed arrest by uniformed officers, giving immediate and full disclosure of the relevant offence, and with subsequent presentation before a Magistrate, is hardly a similar case.
In any case, Goswami’s attempt to equate himself with a journalist being harassed is futile, because the Supreme Court did not grant habeas corpus in Kanojia’s case.
Instead, the apex court directed his release under its “extraordinary” powers under Article 142, because the judges were so disturbed by the high-handedness of the police in making an unnecessary arrest.
Justice Indira Banerjee expressed the Court’s opinion, remarking orally, “We do not appreciate these tweets, but can you put him behind bars for this?”
Goswami has been arrested for his alleged involvement in a case of suicide, not social media. He can certainly be put behind bars for this, and the maximum punishment for the offence is 10 years imprisonment. The High Court has rightly noted some of these important distinctions in its order.
WHAT ARNAB SHOULD HAVE DONE INSTEAD
The High Court wisely recommended to Goswami that he file appropriate proceedings under the statutory provision for bail – Section 439 of the Code of Criminal Procedure, 1973 (the CrPC).
This is the main remedy once a judicial order of custody has been passed and most accused persons dutifully follow this route. Established law and procedure dictate that High Courts must be circumspect when granting bail in a petition filed under Article 226 of the Constitution or Section 482 of the CrPC.
In exceptional circumstances, it may be necessary or expedient to go straight to the High Court for bail, but the necessity must be clear.
Curiously, Goswami did file an application for bail before the Magistrate, but then withdrew it. The State’s lawyer expressed a commendable sentiment before the High Court: that if another bail application was filed before the Magistrate, the State would “not delay the hearing of the application”.
It is worth noting this, since a different investigating agency recently requested 20 days’ time to reply to an application for supply of a straw and sipper by an 83-year-old detainee suffering from Parkinson’s disease in the same jail where Goswami is being held.
IMPORTANT RECOGNITION OF THE RIGHTS OF VICTIMS
Goswami also tried to argue that since a “closure report” was filed in the matter, and accepted by the concerned Magistrate, the police did not have the authority to conduct any “further” or re-investigation without permission of the Magistrate. They argue that if so, then the arrest pursuant to an illegal re-investigation, is illegal.
This is an argument which can be easily understood and has been deployed in the media to support Goswami’s allegations of malicious intent. It is, however, not as simple as it appears and the High Court has dealt with it carefully and reasonably.
The Bombay High Court noted that in April 2019 the police filed an “A” summary report, which means that an offence has been committed, but either there is no information about the culprits, or, the identity of the suspected accused is known but there is not enough evidence to justify sending the case to trial.
This is not the same as closing a case for lack of merit, and the judges seems to have appreciated that.
When this report is filed and the Magistrate accepts it, the informant – usually the victim or the kin of a victim – has a right to be heard. They have an interest in pursuing the investigation, and if there is a lapse on the part of the investigating agencies because of which the case is not proceeding, they may be able to point it out.
The victim’s right to be heard acts as a safeguard against police who are unable or unwilling to help them.
Other safeguards are present right from the initial stage of investigation, from the right to insist on the filing of an FIR (which is mandatory when the informant discloses the commission of a cognizable offence); to the post-trial stage, where the victim has the right to appeal in case the accused is acquitted, convicted for a lighter offence, or the sentence imposes inadequate compensation (Section 372 of the CrPC).
In this case, the family members of the two people who died by suicide, were not even informed of the closure report, let alone given a chance to contest it. The high court noted that in such circumstances, it was difficult to say the case had been closed at all, recognising the importance of victims’ rights in the criminal justice system.
THE POLICE’S RIGHT TO FURTHER INVESTIGATION
When the informants (the deceased Anvay Naik’s wife and daughter) did find out, they made detailed complaints to the Maharashtra government.
This led to the State Government directing further investigation by the local police. Sections 3 and 4 of the Bombay Police Act, 1951 and Section 36 of the CrPC empower the State Government and senior police officers to do so – it could not be seriously contended that they had no power to do so.
The fine point suggested by Goswami’s lawyers was that “re-investigation” or “re-opening” the case without permission of a Magistrate is illegal.
However, the high court noted that the direction by Maharashtra Home Minister Anil Deshmukh was for “further” investigation, which is perfectly lawful under Section 173(8) of the Code.
No permission of the Magistrate is required for this, and the police may continue to investigate even after filing a charge-sheet. Often, multiple charge-sheets are filed pursuant to such “further investigation”.
The High Court made a careful study of the judgments on the subject to conclude that there is no bar on the police’s power to continue investigating after informing the Magistrate, which was duly done. In fact, in this case, the Magistrate even recorded statements of witnesses and was clearly not left in the dark.
THE PUBLIC COST OF MISGUIDED CASES
Goswami has an experienced legal team who were no doubt aware of the issues with their petition. Their approach to the Supreme Court may be one of their backup plans, and given the speed with which his regular bail application will now be heard, he may not view this round as a loss.
But a cost is certainly incurred on the public account.
The case was heard over three days, including in a special Saturday hearing, and will be taken up again in December. Currently, the High Court has 55,504 pending criminal cases before it, of which 3,256 are bail matters, as per the National Judicial Data Grid. And this is without getting into the Supreme Court’s pendency issues, where Goswami is now headed.
Perhaps the clamour for the liberties of these thousands of people is not loud enough. Perhaps, we should take a cue from Goswami in that respect.
(Shruti Narayan is an advocate practicing in Delhi. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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