[Arnab Goswami Case] 'It Will Send A Wrong Signal That Though Sec 439 Is There, HC Can Be Approached', Bombay HC On Habeas Against Remand

During the course of hearing in the habeas corpus petition of Arnab Goswami against his custody in the 2018 abetment to suicide case, the Bombay High Court on Saturday made oral remarks questioning the maintainability of the writ.

A division bench comprising Justices SS Shinde and MS Karnik repeatedly asked the lawyers of Goswami and the other accused why the remedy of regular bail was not availed.

"The Criminal Procedure Code provides Section 439 for regular bail. First, the sessions court, then the High Court. 

There are remedies under CrPC under Sections 438/439. We are not understanding why the petitioners are not availing such remedies and seek interim bail in a writ petition", Justice Shinde, the presiding judge orally said.

Justice Shinde also commented that that entertaining writ petitions in this case might set a bad precedent leading to the High Court being flooded with writ petitions seeking bail in custody matters.

"It will send a wrong signal that though Sec 439 is there HC can be approached in writ. This will be undermining the authority of courts below", the judge said.

At the same time, the bench clarified that it was merely expressing its doubts for clarification and that the comments should be taken as the final opinion of the court.

"We are only in dialogue and have not formed any final opinion", he said.

Supporting the views expressed by the bench, Senior Advocate Amit Desai, appearing for the State of Maharashtra, submitted: "Floodgates of the judicial system, which are already creaking, will creak further, if such applications are entertained".

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.

To buttress the argument that writ was maintainable, Senior Advocate Harish Salve, Goswami's lawyer, placed reliance on last year's Supreme Court judgment in Jagisha Arora vs Union of India, where the top court ordered the release of UP journalist Prashant Kanojia.

After the conclusion of the arguments yesterday, the bench reserved orders on interim bail. The orders will be pronounced tomorrow at 3 PM.

Though Senior Advocates Harish Salve and Abad Ponda made vehement submissions seeking ad-interim bail for Goswami -who was remanded to 14 days judicial custody on November 4 - the bench refused to grant it. 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.

In a related development, Goswami was shifted from Alibag to Taloja Prison in Navi Mumbai today. As per reports, the police said that he was shifted after being found to be using social media in custody using someone else's phone.

Goswami was kept at a local school which has been esignated as a COVID-19 centre for the Alibaug prison.

Read other reports of the hearing :

Bail To Arnab Goswami Will Harm Victims: Akshata Naik's Lawyer To Bombay High Court