[Breaking] Arnab Goswami: Criminal law should not become a tool for selective harassment; High Court abdicated its role, Supreme Court

Delivering its reasoning behind granting Republic TV Editor-in-Chief Arnab Goswami interim bail in the abetment to suicide case, the Supreme Court today held that courts should ensure that criminal law does not become a weapon for selective harassment of citizens [Arnab Manoranjan Goswami v. State of Maharashtra].

. The judgment was delivered by a Bench of Justices DY Chandrachud and Indira Banerjee . Pronouncing the verdict today, Justice Chandrachud said that prima facie , it could not be held that Goswami had abetted the suicide of Anvay Naik.

"Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority which has been noted above, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC..."

. "...we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty." Supreme Court . The Bench lamented that the High Court had failed to establish whether or not there was a prima facie case under Section 306 of the Indian Penal Code (abetment to suicide) against the journalist. The judgment reads,

"The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC."

. After highlighting the factors that High Courts need to consider while deciding to exercise jurisdiction under Article 226 of the Constitution for grant of bail, the Court noted,

"The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail."

. It was further noted that the High Court had failed to consider that Goswami was made a target on previous occasions.

"…the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020."

. Calling upon courts at all levels to safeguard the liberties of citizens, the judgment authored by Justice Chandrachud further reads,

"Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens."

. Pertinently, the Court also noted,

"Doors of courts cannot be closed in such cases and courts should remain open for all cases of deprivation of personal liberty and such deprivation cannot be even for one day."

. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Supreme Court . While disposing of the appeal, the Court concluded,

"We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard."

. The interim order will remain in operation pending the disposal of the proceedings before the High Court, and for a period of four weeks from the date of the judgment of the High Court.

. On November 11, the Vacation Bench of the Court had granted interim bail to Goswami, who was in judicial custody for his alleged involvement in a 2018 abetment to suicide case.

. While doing so, the Bench had held that the Bombay High Court was incorrect in denying Goswami interim bail on November 7. It thus directed for Goswami and the two other co-accused to be released immediately on a bond of Rs 50,000.

. During the course of the last hearing, Justice Chandrachud had observed,

"If we don't interfere in this case today, we will walk on a path of destruction. If left to me, I won't watch the channel and you may differ in ideology, but constitutional courts will have to protect such freedoms..."

. Appearing for Goswami, Senior Advocate Harish Salve had highlighted the malice on the part of the State in prosecuting his client. He took the Court through the contents of the FIR, pointing out that an "A Summary" report denoting closure of the case was filed last year.

. The Supreme Court had expressed three concerns, namely, the High Court said that the complainant was not heard when A Summary report was filed; the High Court held that acceptance of A Summary does not prevent probe under Section 173(a) of the Code of Criminal Procedure (CrPC); and that the prayer to quash the 2018 FIR was still alive before the High Court.

.Of State malice and dangerous precedents: Who argued what in Arnab Goswami bail plea. Pointing out that the Chief Judicial Magistrate at Alibaug had stated that the arrest of Goswami was illegal, and that a prima facie link between Goswami and Naik's suicide cannot be created, Salve pressed for his client's release. He asked the Court,

"Will heavens fall if the man is released?"

. Senior Advocate Kapil Sibal had urged the Court to not set a "dangerous precedent" by granting bail on a reading of the FIR, when the matter was before the High Court. He said,

"Wait for day after tomorrow and don't lay down this precedent. We know what is going on in your mind but we know when extraordinary orders are passed in extraordinary cases then it has repercussions."

. Shortly after the matter was listed before the Apex Court, Senior Advocate and President of the Supreme Court Bar Association (SCBA), Dushyant Dave questioned the manner in which the bail plea was listed the very next day after it was filed.

Dave has lodged "strong protest" with the Secretary General of the Supreme Court Registry, pointing out that Goswami's petitions before the Court are listed urgently while other similarly placed litigants are kept waiting.

. Goswami was in judicial custody since November 4 following his arrest in relation to the 2018 suicide of interior designer Anvay Naik and his mother. Naik had named Goswami and two others in his suicide note, alleging that they had failed to pay up money owed for the work done by his company.

The case was initially closed in 2019, before it was re-opened in 2020 based on a representation made by Naik's daughter, Adnya Naik to State Home Minister, Anil Deshmukh.

. [Read the judgment]

[Breaking] Arnab Goswami: Criminal law should not become a tool for selective harassment; High Court abdicated its role, Supreme Court

Debayan Roy

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