[Breaking]No Bail For Arnab Goswami; Bombay High Court Reserves Order On Interim Bail; Says Parties May Move Sessions Court

"We can't pass order today. It is already six. Meanwhile we will clarify that pendency of the petition will not bar the petitioner from approaching the sessions court for bail and if such an application is filed, it should be decided within 4 days."

When Salve repeated his insistence that an ad-interim relief be granted, Justice Shinde indicated that the Court will reserve orders and will pronounce them someday in the coming week. He assured that the court will pronounce the order as early as possible.

"The Court will clarify that the pendency of the case is not an impediment for the petitioners to apply for bail before sessions court," Justice Shinde said.

The bench clarified that the pendency of the case in the High Court will not be an impediment for the petitioners to seek regular bail under Section 439 of the Code of Criminal Procedure before the concerned court. If such an application is made, the court ordered, the same should be decided by the concerned court within four days of the filing.

The Bench was hearing the Habeas Corpus petition and a bail application filed by Goswami seeking interim release. It also heard Advocates Vijay Agarwal and Nikhil Mengde for a co-accused in the matter, Nitish Sarda and Praveen Rajesh Singh, respectively.

Plea of Habeas Corpus against a Remand order

The State Government disputed the maintainability of the petitions. Senior Advocate Amit Desai, appearing for the Maharashtra Government, submitted that habeas petitions are not maintainable for bail. He further pointed out that habeas is not maintainable against judicial order of remand. "No writ of habeas corpus can be issued if a person is in custody in pursuance of a judicial order… Floodgates of the judicial system, which is already creaking, will creak further, if such applications are entertained," Desai argued.

"They have their alternative remedies in law. We are not going to come in the way of their remedies available in law," he said while stating that the Petitioners should have approached the Magistrate seeking regular bail.

Reliance was placed on State of Maharashtra & Ors. v. Tasneem Rizwan Siddiquee, 2018 (9) SCC 745.

"Arnab Goswami is under custody pursuant to November 4 order of Magistrate. The jurisdiction of Magistrate is not challenged. That being a judicial order, this particular petition will not survive.

Arnab Goswami is not under "unlawful custody". He is under custody based on a judicial order" Desai argued.

Desai further told the Court that Goswami had originally filed a bail application before the Magistrate but the same was withdrawn, for no fault of the State, saying the Magistrate did not give a returnable time.

"The petitioners have chosen to withdraw their bail applications. That is not the fault of the State. We are not going to seek long adjournments. We are also conscious that personal liberties of citizens are involved," he said subject to advance service of bail application upon them.

He further pointed out that the Petitioner's entire case is based on the allegation of illegal arrest and they have not raised any issue of "illegal detention" as they have not challenged the remand order.

"Arrest happens before a person is produced before the Magistrate. The moment your "illegal arrest" has resulted in a judicial remand, the question of arrest is not relevant later," Desai said.

He added,

"Issue of arrest is distinct from issue of custody. Questions of quashing FIR for not disclosing offence, question of illegal arrest and question of detention are different. The question of FIR not disclosing offence not relevant for interim release as they have not challenged the judicial order of remand."

Salve on the other hand, appearing for Arnab Goswami, referred to the Supreme Court's verdict in Jagish Arora v. State of UP, where the Supreme Court ordered the release of journalist Prashant Kanojia from custody last year.

"The very same argument that habeas was not maintainable was raised there. The Supreme Court did not accept it and ordered the relaese of Prashant Kanojia who was remanded to custody," Salve told the Court.

'If We Don't Finish Arguments Today, We Will Post Case After Vacations' : Bombay HC During Arnab Goswami Case Hearing; Arguments In Progress

On allegations of malafide

Yesterday, Salve had alleged that the State is acting out of malice.

Responding to this, Desai submitted that the questions of malafide or malice-in-fact are not relevant because the Magistrate has passed the order of remand.

"Order of remand is a judicial function… The petitioner has efficacious remedy of seeking bail before proper court. Even if a remand order is passed mechanically, a writ of habeas is not the remedy… As a matter of law and as a matter of proprierty, the hierarchy of courts should not be altered," Desai argued.

Further referring to Salve's submissions on malice based on Home Minister's statement in the State Assembly, Desai argued that their investigation pre-dates that incident.

"Assembly discussions were in September. But by this time process was already underway. In May reinvestigation process started. In June statements were taken by police. Harish Salve's arguments of malice are therefore baseless. To suggest the investigation is "patently illegal" is wholly baseless," it was argued.

Right of victim to seek fair & complete investigation

Highlighting the Complainant's plight, who had lost her father and grandmother, Desai submitted that she had been "knocking on the doors for justice" for almost a year.

"Today the State is in the process of collecting evidence. Article 14 applies to the victim as well. Victim also a fundamental right to seek fair and complete investigation… From February, the victim (Adnya Naik) has been knocking on the doors for justice. The victim discovered the closure report only in Twitter… Petitioner has rights. Also, the victim has rights. It is the duty of the State to balance the rights of the victim and the accused," he vehemently argued.

He submitted that the investigation cannot be brought to a standstill when it is under progress. He insisted that there is a suicide note with names of persons and thus it is a matter that needs to be investigated.

Reliance was placed on Narayan Malhari Thorat v. Vinayak Deorao Bhagat, where the Supreme Court criticized the Bombay High Court for quashing an abetment to suicide case where the name of the accused was in the suicide note.

Appearing for the Complainant, Senior Advocate Sirish Gupte alleged that investigation was handled by the previous investigation agency in a high-handed manner. He urged,

"To release the man (Arnab Goswami) right now when the investigation is pending is an injustice to the victim. Let him follow proper procedure under Section 439 CrPC."

Salve argued that the Naik family will have to explain why they had approached the Court only now and what were they doing between April 2019 and now.

Gupte also asked the Court what is the urgency that the Petitioner must be given an audience by a division bench of for three days, when during the times of COVID19, several petitions are not being heard.

At this juncture, Justice Shinde interrupted Gupte and clarified, "Two benches of the Court are hearing such matters. Matters of bail parole etc are disposed of within a week. Today, we held special sitting on the basis of consensus."

Whether prima facie case of abetment made out

Yesterday, Salve had argued that there was no personal relationship between Goswami and the deceased and they were merely involved in a commercial transaction. He had also submitted that without a positive act on the part of the accused to instigate or aid in committing suicide, ingredients of Section 306 IPC are not fulfilled.

Referring to these arguments, Desai argued that this is not the stage to examine the accused' intention, especially when the suicide note mentions his name.

"Adnya Naik (Complainant) has told the Court that threatening calls were made to her family and complaints were registered. These are circumstances which need to be investigated," he insisted.

Power of Police to reopen a closed case

The Petitioner has consistently argued that after the Magistrate passed a closure order in the case in 2019, based on the report submitted by police then, it do not have the power to suo moto re-open the case without getting a judicial order.

Responding to this, Desai submitted that the precedents cited by Petitioner are distinguishable inasmuch as those are cases where Court had taken cognizance on charge sheet and further investigation was sought during trial.

Stating the that in this case an 'A Summary' report was filed by the Police, he explained that it is not a case of discharge or closure. He said,

"If it is a "A" summary, it means that evidence was not sufficient but offence was there. If it was a case of wrong accused, it would have been 'B' summary.

When Magistrate accepts 'A' Summary, it means that there is an offence. It is not a case of discharge or closure… It means it was a genuine case of offence but investigation could not collect evidence… "A Summary" reflects incomplete investigation. In "B" and "C" summary, investigation is complete and either there is no offence or wrong accused. The distinction is important."

He further stated that accepting the arguments of the Petitioner would curb the liberty of the police to nab the accused.

"Take a case of terrorism where evidence is not traceable. After a period of time, police files 'A' summary before Magistrate. After some time, police gets evidence of terrorist. Should police wait for Magistrate order to nab him?" Desai remarked.

He added,

"The power of the investigating officer to make further investigation under Section 173(8) and the power of the Court to order the same is different."

Reliance was placed on Nirmal Singh Kahlon v. State of Punjab where the Top Court had observed that it is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation and correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.

Desai also referred to Section 4 of the Maharashtra Police Act as per which the superintendence of the Police Force throughout, the State of Maharashtra, vests in and exercisable by the State Government. "So State govt has power to direct investigation," he said.

Nevertheless, he informed the Bench that the Magistrate, who had passed the order of closure, was informed of the revival of the FIR so that he can supervise the case. (In terms of Sakiri Vasu v. State of UP & Anr.)

He submitted that Section 164 statements were also recorded by the Magistrate in the case and allowing the recording of those statements mean that the Magistrate is aware of the revival of investigation and has approved the same.

Observations as to legality of arrest in CJM's remand order

Senior Advocate Harish Salve had argued for Goswami that the remand order passed by CJM Alibag, "makes important points about the illegality of arrest and the lack of merits in the allegations against Arnab Goswami".

Disputing the same, Desai told the Court that the Petitioner had indulged in selective reading of the order and the Magistrate made no opinion as to the (il)legality of arrest. He submitted,

"Magistrate has not come to the conclusion that the arrest is illegal. That argument is made by misinterpreting the order. Para 17 of the Order makes that clear. Petitioners read only Para 16. In Para 17, the Magistrate says that the objections raised by the lawyers of the accused which are recorded in paragraph 16 are irrelevant."

Read the arguments raised by Petitioner (Arnab Goswami) in the following reports:

• That Arnab Goswami Will Go Back To TV And Scream At Police Commissioner Can't Be A Ground To Keep Him In Custody : Salve In Bombay High Court
• No Interim Relief For Arnab Goswami Today, Bombay High Court Will Continue Hearing Tomorrow
• "Brutally Manhandled By Maharashtra Police": Arnab Goswami Seeks Interim Bail From Bombay High Court

Other developments during today's hearing:

• 'If We Don't Finish Arguments Today, We Will Post Case After Vacations' : Bombay HC During Arnab Goswami Case Hearing; Arguments In Progress
• [TRP Scam Case] Bombay HC Issues Notice On Hansa's Petition Seeking Transfer Of Probe To CBI Alleging Harassment By Mumbai Police
• Bombay HC Issues Notice To Maharashtra Govt On Adnya Naik's Plea Against Police Officers Who Closed 2018 Abetment Case Against Arnab Goswami