TRP Scam : Prima Facie Nothing Substantial On Record Against Arnab Goswami & Republic TV Even After 3 Months Of Investigation, Observes Bombay High Court

The division bench of Justices SS Shinde and Manish Pitale further said that they will examine if the case falls under any of the categories enumerated in Bhajan Lal's Case which deals with the extraordinary powers of the court under Article 226 and Section 482 of the Code of Criminal Procedure, to prevent abuse of the process of any court or otherwise to secure the ends of justice.

"The investigation is going on for the last three months. We don't see anything that has surfaced on record to array the petitioners as accused," Justice Shinde said after Chief Public Prosecutor Deepak Thakare informed the court that the police want to continue their investigation against ARG Outlier and Arnab Goswami.

"Ok, now see Bhajan Lal's case, if the petitioner's case falls under any of the categories, we need not wait for the completion of the investigation," Justice Shinde observed.

Later during the hearing, the court said that the dilemma was the reliefs sought by the editor-in-chief of Republic TV Arnab Goswami and ARG Outlier Media Pvt Ltd, the company that owns the channel.

The petition seeks to quash the FIR and two subsequent charge sheets against ARG, its employees and Arnab Goswami; the second prayer is not taking coercive steps against them.

Justice Pitale noted that the company and Arnab, at best, were suspects, as of now. "You are not accused. You say quash the proceeding, but, what can be quashed and against whom, when you are not accused?

The court observed that if the petitioners succeeded, clause 22 of the charge sheet, which calls Republic TV and its chakal-malak suspects, can be quashed.

Senior Advocate Ashok Mundargi, appearing for the petitioners, submitted that the whole design of the Mumbai Police was to keep the prosecution open-ended in the TRP Scam. "We are not asking you this question as their advocate."

"If the press was not here, I would have answered it," Mundargi responded.

Justice Shinde said a case can be treated as rarest of rare but then detailed reasons would have to follow. Commenting on the role of an investigating agency, he observed they should act reasonably. "The most important thing in a democracy is the faith of the people in an institution. This is why reasonability and objectivity needs to be kept in force," Justice Shinde said.

Justice Pitale added that if the state was reasonable, there should be a deadline for investigation.

Arguments on the Charge Sheet

Mundargi referred to the statements of private cable operators to show channels have contracts with them, so that their channels are serially placed before other channels. "Paying a private cable operator to show a channel first is not an offence. No one is induced, there is no breach of trust," Mundargi submitted.

Mundargi added that there is no mechanical device to check if the cable operator has honoured his contract or not. "There are no bar-o-meters and the placement of the channel is not TRP related," he said.

Mundargi further argued that paying cable operator may amount to a violation u/s 29 of the TRAI Act, but there is a bar on taking cognisance, as, a complaint would need to be filed by the authorised officer first. "Anyhow, it can't be the subject matter of the current investigation," Mundargi said.

The Court then asked Mundargi how could the matter then be investigated by the Enforcement Directorate. "The ED can investigate? Especially when you are saying that the State cannot investigate."

The bench was referring to the application filed by the petitioners to bring the ED on record as they have registered a separate case to investigate the TRP Scam.

Mundargi said the ED came into the picture because there were allegations of money laundering. "It was not at our doing, it was their (Mumbai Police) doing, when they so enthusiastically went about this case. We as businessmen only want to do our work. No one wants an investigating agency behind them," he submitted.

CP's Press conference

Mundargi pointed out how various communications regarding the TRP Scam were being marked to Sachin Waze, even though, he wasn't the investigating officer or the policeman sending the notices.

He argued said that the notice u/s 91 of the CrPC sent to BARC for their internal report, from January 2020, which was eventually cited in the press conference, to name Republic TV, was also marked to Waze.

Justice Pitale noted that the January report only had statistics on TRP Ratings, no analysis.

Note- Suspended Mumbai Police officer Sachin Waze, was arrested by the National Investigating Agency in a separate case on March 13, 2020. In the light of Waze's arrest, Mumbai Police Commissioner - Parambir Singh, who took the controversial October 8, 2020 Press Conference in the TRP Scam, was shunted out of his office, on Wednesday,

Registration of FIR

Mundargi argued that the registration of FIR in the TRP Scam from October 6, 2020 was suspicious. He read the statement of Assistant Police Officer Riyaz Kazi, who works under Waze.

As per Kazi's statement, when he reported to duty on October 6, 2020, Waze gave him the 'secret information' about the TRP Scam with two names. Kazi claims he investigated the information and called the first informant Hansa Research for Investigation.

Mundargi, however, claimed that as per the same statement, Hansa's employee was arrested at 1.30am on October 6, before the first informant was even called in for investigation.

The court then adjourned the matter to Monday after recording the Mumbai Police's statement that there will be no coercive action till then.