Bombay High Court Refuses To Apply 'Prashant Kanojia' Precedent In Arnab Goswami's Case; Says Facts Are Different

In the order refusing interim bail to Arnab Goswami, the Bombay High Court distinguished the facts of the precedent of Prashant Kanojia's release in a habeas corpus petition filed in the Supreme Court last year and held that it was not applicable to the Republic TV anchor's case.

Senior Advocate Harish Salve, Goswami's lawyer, had placed reliance on the order passed by the Supreme Court last year to release Prashant Kanojia, a UP journalist arrested and remanded over some of his tweets, in a habeas corpus petition filed by his wife Jagisha Arora challenging his detention(Jagisha Arora v Union of India).

Placing reliance on this decision, Mr.Salve argued that the habeas corpus petition filed by Goswami against his arrest and remand in the Anvay Naik suicide case is maintainable.

However, a division bench of Justices SS Shinde and M S Karnik was not persuaded by this argument.

Firstly, the bench said that the Supreme Court ordered the release of Kanojia invoking the powers under Article 142 of the Constitution(extraordinary powers to pass necessary orders to do complete justice), which are not available with the High Court.

"...the said direction was issued in exercise of power under Article 142 of the Constitution of India; such power is not available with this Court. Therefore, the prayer of the petitioner to be forthwith released, cannot be acceded", the HC observed.

Further, referring to the facts of that case, the HC noted that Kanojia was arrested pursuant to the initiation of proceedings under sections 500 and 505 of the Indian Penal Code read with section 67 of the Information Technology Act, 2000 for certain tweets and posts made by him online.

However, the case against Goswami is that of abetment to suicide under Section 306 IPC which carries a maximum punishment of 10 years imprisonment.

"The offence(Sec.306 IPC) is cognisable, non-bailable, triable by Court of Sessions and not compoundable", the Court noted.

The division bench also referred to the Supreme Court decision in Serious Fraud Investigation Office v Rahul Modi which set aside a direction passed by a High Court allowing bail in a writ petition.

"The petition and application for interim protection proceeds on the premise that the petitioner is illegally detained. However, on the date of filing the petition and the application, the applicant – petitioner was in judicial custody as it is averred by the petitioner himself in the application", the HC noted in the 56-page order.

During the course of the hearing, Mr.Salve told the court that he was not pressing the prayer for the writ of habeas corpus. This submission is also seen recorded in the order passed today.

In the alternative, Mr. Salve sought for a stay of the investigation on the basis of the argument that the FIR did not disclose the offence under Section 306 IPC.

However, the Court said that it cannot consider this argument at the present stage when the investigation is progressing.

"Mr.Harish Salve, the learned Senior Advocate appearing for the Petitioner, vehemently argued that the allegations in the First Information Report, read in its entirety, do not disclose the alleged offence against the petitioner. 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. Since the petitions are posted for hearing for consideration of prayer of the petitioners for quashing of the First Information Report, we refrain ourselves from expressing opinion on merits at this stage. In the facts of the present case, no case is made out for release of the applicant – petitioner under extra-ordinary writ jurisdiction", the order stated.

The Court has posted the writ petition for further hearing on December 10.

Arnab Goswami Case - Further Investigation Of Anvay Naik Suicide Not Illegal; Victims' Rights Also Important: Bombay High Court [Read Order]

The Court dismissed the interim application seeking bail observing that the petitioner has available to himself the alternate remedy of regular bail under Section 439 of the Code of Criminal Procedure.

While dismissing the application, the bench clarified that its observations are prima facie in nature and confined to the adjudication of the present Interim Application only.

The lower court should consider the regular bail application without being influenced by the observations in the order, the bench further clarified.

Goswami was arrested from his Mumbai residence by the Raigad police on the morning of November 4 in relation to the death of Naik, who had left a suicide note alleging that the Republic TV chief had owed him Rs 83 lakhs. The suicide note had mentioned the names of two others too.

The Chief Judicial Magistrate of Alibag remanded Goswami to 14 days judicial custody on November 4 night, after refusing to remand him to police custody.

Following that, Goswami filed habeas corpus writ petition in the High Court challenging his arrest and custody. Ahead of the High Court's rejection of interim bail, Goswami moved the Sessions Court Alibag seeking regular bail, which is likely to be considered tomorrow.

The Sessions Court is also hearing the revision petition filed by the police challenging the CJM's refusal of police custody.

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