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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 742 of 2020
(Arising out of SLP (Crl) No. 5598 of 2020)
Arnab Manoranjan Goswami ....Appellant
Versus
The State of Maharashtra & Ors. ....Respondents
With
Criminal Appeal No. 743 of 2020
(Arising out of SLP (Crl) No. 5599 of 2020)
And With
Criminal Appeal No. 744 of 2020
(Arising out of SLP (Crl) No. 5600 of 2020)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
This judgment has been divided into sections to facilitate analysis. They are:
A The appeal
B The parties, the FIR and ‗A‘ Summary
C Previous proceedings against the appellant
D Re-opening of investigation and arrest of the appellant
E Submissions of Counsel
F Criminal Appeal No. 743 of 2020 (Arising out of SLP (Crl) No. 5599 of 2020)
G Criminal Appeal No. 744 of 2020 (Arising out of SLP (Crl) No. 5600 of 2020)
H Jurisdiction of the High Court under Article 226 and Section 482 CrPC
I Prima Facie evaluation of the FIR and the grant of bail
J Human liberty and the role of courts
K Conclusion
PART A
2 Pending the disposal of the petition, by an interim application in the proceedings^3 , the appellant sought his release from custody and a stay of all further proceedings including the investigation in pursuance of the FIR.
3 A Division Bench of the High Court, by its order dated 9 November 2020, noted that prayer (a) by which a writ of habeas corpus was sought was not pressed. The High Court posted the hearing of the petition for considering the prayer for quashing of the FIR on 10 December 2020. It declined to accede to the prayer for the grant of bail, placing reliance on a decision of this Court in State of Telangana vs Habib Abdullah Jeelani^4 (― Habib Jeelani ‖). The High Court was of the view that the prayers for interim relief proceeded on the premise that the appellant had been illegally detained and since he was in judicial custody, it would not entertain the request for bail or for stay of the investigation in the exercise of its extra-ordinary jurisdiction. The High Court held that since the appellant was in judicial custody, it was open to him to avail of the remedy of bail under Section 439 of the CrPC. The High Court declined prima facie to consider the submission of the appellant that the allegations in the FIR, read as they stand, do not disclose the commission of an offence under Section 306 of the IPC. That is how the case has come to this Court. The appellant is aggrieved by the denial of his interim prayer for the grant of bail.
(^3) ―(a) Pending final hearing and disposal of the captioned writ petition, this Hon'ble Court be pleased to grant bail to the Petitioner in FIR No. 59 of 2018 and direct the Respondents and/or each of them toimmediately release the Petitioner from illegal detention and wrongful custody and/or arrest by the (b) Respondents in view of detailed submissions made herein above, to meet the ends of justice.Pending the final hearing and disposal of the captioned writ petition, this Hon'ble Court be pleased to stay all further proceedings, including the investigation in FIR No. 59 of 2018, with respect to the Petitioner.‖ (^4) (2017) 2 SCC 779
PART B
B The parties, the FIR and ‘A’ Summary
4 The appellant is the Editor-in-Chief of an English television news channel, Republic TV. He is also the Managing Director of ARG Outlier Media Asianet News Private Limited which owns and operates a Hindi television news channel by the name of R Bharat. The appellant anchors shows on both channels.
5 The appellant was arrested on 4 November 2020 in connection with FIR 59 of 2018 which was registered at Alibaug Police Station under Sections 306 and 34 of the IPC.
6 The genesis of the FIR can be traced back to December 2016, when a company by the name of ARG Outlier Media Private Limited (― ARG ‖) awarded a contract for civil and interior work to another company, Concorde Design Private Limited (― CDPL ‖) which was owned substantially by Anvay Naik (the ― deceased ‖).
7 The FIR was registered on 5 May 2018 on the complaint of Akshyata Anvay Naik (the ― informant ‖), the spouse of the deceased who is alleged to have committed suicide. The contents of the FIR read thus:
―12. First Information contents: Facts : I Smt. Akshata Anvay Naik Age 48 yeas, occupationhousewife, residing at 901, Rishabh Tower, Senapati Bapat Marg,present and state in writing that my mobile No. 8169947073, I Elphistone West, Mumbai -25 personally remain amdeceased residing Anvay at theMadhukar abovementioned Naik, daughter address Adnya with Naikmy together. My husband is having company owned under nameand dstype as Concorde Design and we were having our livelihood by doing business of architecture interior designingand engineering consultancy,. My husband Anvay Madhukar
PART B
We both directors I) Mr. Anvay M. Naik 2) Kumud M. Naik, 7)Money is stuck and following owners of respected companies are not paying our legitimate dues 8) Mr. Amab GoswamiARG Outlier of Republic TV, not paid 83 lacs for Bombay Dyeing Studio project, 9) Feroz Shaikh Icaswt Xnot paid our 400 lacs in Laxmi, 3rd and 4th floor idea Square / Skimedia project in Andheri 10) Mr. Niteish Sarda owner of smart worksMagarpattaq and Baner Project ( 55 Lacs pending) 11) kindly collect money from them and held them responsible for ourdeath and pay to creditors 12) I and my mother are directors in Concorde India company and following persons have tillnow not paid me money of work done by me. In which it is writtenhaving Rs.83 Lac of work done, 2) Firoz Khan having 4 crores as Arnab Goswami ARV Outlife Of Republic TV of work done, 3) Nitesh Sarda 55 lacs of work done should bedeposited and should be held responsible for my death and getting the same deposited and pay the dues of public. Withregard to the contents written in the said note my husband Anvay Madhukar Naik had continuously informed me for lastone or two years. While he used to tell me he was under immense pressure. Therefore I am having lawful complaintagainst. Arnab Goswami, 2. Firoz Khan, 3. Nilesh Sarda the persons whose names written in said suicide note by myhusband Anvay Madhukar Naik that the abovementioned amountdemanding the said amount have not paid the said amount was due from them and even after continuously andtherefore my husband Anvay Naik Age 53 years and my therefore my husband was under great pressure mother in law Kumud Madhukar Naik died and the informationof such contents was registered and PI Shri Warade is investigating the said offence.‖
The FIR records thus:
(i) The appellant (who owns the company ARG) had not paid an amount of Rs. 83 lacs for the Bombay Dyeing Studio project. In addition, there was an outstanding amount of Rs. 4 crores from Feroz Shaikh and Rs. 55 lacs from Nitesh Sarda (who are the appellants in the connected Criminal Appeals);
PART B
(ii) The spouse of the informant had not received payment for the work which was carried out by him, as a result of which he was under mental pressure and that he committed suicide by hanging on 5 May 2018; (iii) There is a ‗suicide note‘ holding the above three individuals responsible; and (iv) The informant was informed on 5 May 2018, when she and her daughter were at their residence at Mumbai, that her mother-in-law Kumud Naik had died at their Alibaug residence. On the way to Alibaug, she was informed that her husband had committed suicide. On reaching the house at Alibaug, she found the body of her mother-in-law lying on a bed and that her spouse had committed suicide by hanging.
8 On 6 May 2018, officers from the Alibaug Police Station visited ARG‘s office in Mumbai and served three notices under Section 91 of the CrPC. On 7 and 8 May 2018, two representatives of ARG visited Alibaug Police Station where they claim to have handed over the information which was sought by the police in their notices under Section 91. On 22 May 2018, the appellant submitted a representation to the notice under Section 91 following which on 30 May 2018 and 28 June 2018, the statements of the Chief Financial Officer and Company Secretary of ARG were recorded.
9 On 16 April 2019, the SHO at Alibaug Police Station filed a report in the Court of the Chief Judicial Magistrate (― CJM ‖) for an ‗A‘ summary. The CJM passed an order accepting the report and granted an ‗A‘ summary. The meaning and import of an ‗A‘ summary is reflected in Para 219 (3) of the Bombay Police Manual, 1959. An ‗A‘ Summary indicates a case where an offence has been
PART C
communication to ARG stating that out of a total billed amount of Rs. 6.45 crores, an amount of Rs. 5.75 crores had been received from ARG, and after adjustment of an amount of Rs. 70.39 lacs towards deductions made from the bill, an amount of Rs. 88.02 lacs was due and payable. On 6 November 2019, ARG addressed another letter to the informant recording the closure of the police investigation and reiterating its readiness to pay an amount of Rs.39.01 lacs subject to due authorisation. The matter appears to have rested there until a flurry of developments took place in the month of April 2020.
C Previous proceedings against the appellant
11 During the course of the present proceedings, the appellant has adverted to proceedings initiated against him previously by the State of Maharashtra, in order to support his case that the arrest is vitiated by malice in fact.
12 On 16 April 2020, a broadcast took place on Republic TV, followed by a broadcast on Republic Bharat on 21 April 2020 in relation to an incident which took place in Gadchinchle village of Palghar district in Maharashtra. During the course of this incident on 16 April 2020, three persons, including two Sadhus, were brutally killed by a mob, allegedly in the presence of the police and forest guard personnel. According to the appellant, on his news show titled ― Poochta hai Bharat ‖ on 21 April 2020, he had raised issues in relation to the allegedly tardy investigation of the incident by the police.
13 As this Court noticed in a judgment dated 19 May 2020, the broadcasts led to the lodging of multiple FIRs and criminal complaints against the appellant in
PART C
the States of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh, Telangana and Jharkhand as well as in the Union Territories of Jammu and Kashmir. The content of the FIRs was similar, almost identical. In the State of Maharashtra, an FIR was lodged at Police Station Sadar, District Nagpur City, details of which were as follows:
"MaharashtraFIR No. 238 of 2020, dated 22 April 2020, registered at Police StationSections 153, 153-A, 153-B,295-A, 298, 500, 504(2), 506, Sadar, District Nagpur City, Maharashtra, under 120-B and 117 of the Indian Penal Code 1860."
Apart from the above FIR, fourteen other FIRs and complaints were lodged against the appellant in relation to his broadcasts.
14 The appellant moved this Court in proceedings under Article 32 of the Constitution^5 challenging the registration of these FIRs. By an interim order dated 24 April 2020, the FIR which had been lodged at Police Station Sadar, District Nagpur City was transferred to NM Joshi Marg Police Station, Mumbai and was renumbered as FIR 164 of 2020. Another FIR, FIR 137 of 2020, was registered against the appellant on 2 May 2020 at the Pydhonie Police Station, Mumbai. FIR 137 of 2020 was filed against the appellant due to a telecast which took place on 29 April 2020 on the appellant‘s new channels, in which the appellant referred to a gathering of migrant workers at the Bandra Railway station during the Covid- pandemic, and attempted to connect a place of religious worship with this
(^5) Writ Petition (Crl.) No. 130 of 2020
PART C
(ii) The issuance of a letter by the ― Shiv Cable Sena ‖ to cable operators across Maharashtra asking them to ban the telecast of the appellant‘s news channel; (iii) An order of the Bombay High Court dated 11 September 2020 in a Writ Petition under Article 226 holding that the letter of the Shiv Cable Sena did not have the force of law and the appellant would be at liberty to pursue the remedies available in law; (iv) On 16 September 2020, a notice to show cause was issued to the appellant for breach of privilege of the legislative assembly, which is the subject of proceedings instituted in this court; (v) A notice to show cause was issued under Section 108(1) of the CrPC to the appellant by the Special Executive Magistrate, in spite of the order of the Bombay High Court; (vi) The registration of FIR 843 of 2020 on 6 October 2020 at Kandivali Police Station (later transferred to the Crime Intelligence Unit, Mumbai) on a complaint by an employee of Hansa Research Group Private Limited in relation to the ‗TRP scam‘; (vii) A press conference by the Commissioner of Police Mumbai on 8 October 2020 mentioning the name of the appellant as being allegedly involved in the ‗TRP scam‘; (viii) The appellant instituted a Writ Petition under Article 32 of the Constitution^7 before this Court seeking reliefs in respect of FIR 843 of 2020. By an order
(^7) Writ Petition (Crl.) 312 of 2020
PART D
dated 15 October 2020, the Writ Petition was dismissed as withdrawn with liberty to the appellant to approach the Bombay High Court; and (ix) The appellant filed Writ Petition (Crl.) Stamp No. 3143 of 2020 before the Bombay High Court, in which on 19 October 2020 an order was passed calling upon the Investigating Officer to submit the investigation paper in a sealed envelope on 4 November 2020. The High Court noted that the appellant had as on date not been arrayed as an accused in the FIR and if the investigating officer proposed to make an enquiry, a summons shall be issued to him. The appellant agreed to cooperate in the enquiry.
D Re-opening of investigation and arrest of the appellant
18 On 26 May 2020, the Home Department of the State of Maharashtra addressed a communication to Deputy Inspector General of Police stating that the FIR registered as Crime No. 59 of 2020, at Alibaug Police Station under Sections 306/34 of the IPC, was being transferred to the crime investigation department ―for the purpose of reinvestigation‖. The letter, insofar as is material, reads thus:
―In respect of the above mentioned subject, you are hereby informed that crime no. 59/2020 registered at Alibaug Police Station under Section 306/34 and Crime no. 114 of 2018registered at Alibaug Police Station under Section 302 are being transferred to Crime Investigation Department for thepurposes of reinvestigation. Hence, you are requested to undertake the necessary steps for handing over the case forreinvestigation and report in respect of investigation already been made be submitted to the Government.‖
PART E
Court denied bail to the appellant on the ground that no case has been made out for the exercise of the extra-ordinary jurisdiction and that the appellant had an alternate and efficacious remedy under Section 439 of the CrPC.
E Submissions of counsel
23 Assailing the order of the High Court denying bail to the appellant, Mr Harish N Salve, learned Senior Counsel, submitted that:
(i) The arrest of the appellant is rooted in malice in fact, which is evident from the manner in which the appellant as the Editor-in-Chief of Republic TV and R Bharat has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police; (ii) Following the acceptance of the police report and the issuance of an ‗A‘ summary on 16 April 2019, the reinvestigation which has been ordered at the behest of the Home Minister of the State of Maharashtra is ultra vires. Further, in the absence of the specific permission of the CJM, it was not open to the State to conduct a reinvestigation; and (iii) The allegations contained in the FIR, read as they stand, do not establish an offence under Section 306 read with Section 34 of the IPC. To constitute the offence of abetment there must exist: i. A direct or indirect incitement to the commission of a crime; ii. An active role of the accused in instigating or doing an act facilitating the commission of the crime; and iii. The existence of a proximate relationship in time.
PART E
In the present case, it was submitted that even if the allegations in the FIR are accepted as they stand, no case of abetment is established. It has been submitted that the company of the appellant (ARG) had entrusted a contract for interior work to the deceased‘s company (CDPL). Further, it is not in dispute that while an amount of Rs 5.45 crores has been paid, there was a commercial dispute pending in regard to the remaining payment between the two companies. The contents of the FIR also reveal that the deceased was suffering from mental pressure. Furthermore, there is absolutely no allegation that the appellant had either instigated or committed any act to facilitate the commission of the crime.
24 Mr Salve further submitted that the judgment of this Court in Habib Jeelani (supra) has been wrongly interpreted by the High Court. It has been submitted that it was in pursuance of the liberty that was granted by the High Court, that an application for bail under Section 439 of the CrPC was filed. However, even on 9 November 2020, the Public Prosecutor has filed a note before the Sessions Judge that the revision application filed by the State against the order of the CJM should be heard first and it is only thereafter that the application for bail should be taken up. On the basis of the above submissions, it has been urged that the appellant has been made a target of the vendetta of the State government, which emerges from the successive events adverted to above which have taken place since April 2020. Hence, it has been urged that there is absolutely no ground to continue the arrest of the appellant and absent any reasonable basis for depriving him of his liberty, an order for the grant of bail should have been passed by the High Court. Mr. Salve finally submitted that the interest in preserving the procedural hierarchy of courts must give way to the need to
PART E
up committing suicide. Further, while making a determination as to the quashing of proceedings, the Court has to form only a tentative opinion and not a firm view; (v) A hierarchy of courts is provided for to consider an application for bail under Section 439 of the CrPC. In the present case, there is no valid basis to by-pass that hierarchy in order to grant relief to the appellant; (vi) An application for bail was initially filed on behalf of the appellant which was withdrawn after the order for judicial custody was passed. An application for bail has been filed after the High Court while reserving judgment granted liberty to do so with a direction for its disposal within four days. Hence, it is appropriate that the appellant is relegated to pursue the remedies under Section 439; (vii) Prayer (a) in the Writ Petition for the grant of a writ of Habeas Corpus was not maintainable in view of the fact that the appellant had been arrested and committed to judicial custody, and the interim application for his release on bail was only in the context of the prayer for Habeas Corpus; (viii) During the course of the hearing of the proceedings before the Bombay High Court, the Division Bench indicated that if the appellant were to file an application under Section 439, appropriate administrative directions of the Chief Justice could be obtained for listing it before the Division Bench since applications for bail are placed for hearing before a Single Judge (while the petition was before a Division Bench) and the appellant had only filed an interim application in the pending Writ Petition for being released on bail;
PART E
(ix) Both the issue of whether the appellant has made out a case for quashing the FIR and whether a reinvestigation could have been ordered at the Home Department of the State would be considered by the High Court on 10 December 2020; (x) The High Court has drawn a balance between the rights of the accused and the family of the deceased victim. A substantive Writ Petition has been filed by the informant, stating that it was only through a tweet on the social media that she had learned of the ‗A‘ summary and that she had not been heard before the order was passed by the Magistrate accepting the police report; (xi) Even when ‗A‘ Summary has been accepted in terms of Para 219(3) of the Bombay Police Manual, there is no restraint on a further investigation being carried out by the Investigating Officer under Section 173(8) of the CrPC. An ‗A‘ summary postulates that there was no completed investigation. Hence, requiring prior judicial sanction as a precondition for conducting further investigation after the filing of an ‗A‘ summary will impede the ability of investigating authorities to effectively perform their role. Such a course of action is also permissible in view of the decision of this Court in Vinubhai Haribhai Malaviya vs State of Gujarat^9 ; and (xii) The High Court was justified in coming to the conclusion that there was nothing extraordinary in the facts of the present case to shock the conscience of the Court so as to take recourse to its extraordinary jurisdiction under Article 226 to direct the release of the appellant on
(^9) 2019 SCC OnLine SC 1346
