[TRP Scam] “Why keep the sword hanging over their head?” Bombay High Court to Mumbai Police in Republic TV plea

The Bombay High Court on Wednesday observed that the Mumbai Police seemed to have unearthed no evidence against Republic TV in the Television Rating Points (TRP) scam case despite investigating the matter for over three months.

. A Bench of Justices SS Shinde and Manish Pitale was hearing the petition filed by ARG Outlier Media (holding company of Republic TV channels) challenging the criminal proceedings initiated against its channel and employees in the TRP scam.

. The Court observed that despite the Mumbai Police having filed two chargesheets, there seemed to be no evidence against Republic TV.

. “And this FIR is of October 2020. We are in March 2021. We have seen in matters “khichdi pak rahi hai”. Why keep the sword hanging on their head? You are investigating for the last 3 months and you have no evidence against them. Their contention is that they are always in the fear that some action may be taken against them and it seems so from the past action against their employees,” the Court observed. . The Court also demanded why the petitioners, including Editor-in-Chief of the channel Arnab Goswami or any of the Republic TV journalists, have not yet been named as accused in the matter

“Why not make them accused? We do not think there is anything as such as “suspect” in criminal law,” Justice Pitale weighed in.

. These observations came after Republic TV told the Court that Mumbai Police have deliberately not named Goswami and others as accused yet, so that they won't be able to move courts for want of locus, to quash the case.

. When the Special Public Prosecutor (SPP) sought time to seek instructions, the Court adjourned the hearing. While doing so, it remarked that it expects prompt responses from the State.

“If you are not able to quickly answer our queries...At appropriate stage we will have questions. Will you be answering them? We don't know who is briefing you or from whom you are taking instructions.”

. Over a span of two days, Senior Advocate Ashok Mundargi appearing for ARG Outlier, submitted that the intention of the entire investigation being carried out by the Mumbai Police is to target Republic, even though they (Police) have information against other channels.

. Mundargi's contentions were in reply to the claim raised by the State against the maintainability of the petition on the ground that neither of the petitioners were named in the chargesheet.

He claimed that the prosecution investigation is cooked up and that even though there are two chargesheets, there was nothing substantial against the channel.

. Argument 1: Republic not named as “accused” to keep the investigation open

. Mundargi claimed that the Mumbai Police have not yet named Republic or its employees as accused in the chargesheet so that they could keep the investigation open.

. Relying upon the remand applications filed for the various employees of the Republic channel who were arrested by the police in this case, Mundargi argued that even though they were named as “suspects” in the chargesheet, in the remand application, they were named as “wanted accused”.

. “It is not an innocent act of the prosecution, that they are targeting the Petitioner no. 2 (Goswami) and he is not named accused. They can come at anytime and take any of them away,” Mundargi argued. . Argument 2: Intention of the investigation to implicate Republic channel

. Mundargi’s next argument was that the Mumbai police resorted to “malafides and unnatural ways of collecting information to somehow name the petitioner channel (Republic) by hook or crook.”

. He referred to three letters annexed in the chargesheet which showed that even on October 8, there was no sign of inquiry or ongoing investigation.

Next, he referred to the complaint filed on October 6 which did not name Republic and the interview which relied upon a Broadcast Audience Research Council (BARC) report to name Republic.

. He submitted that Commissioner of Police Parambir Singh, in an interview, had relied upon a report of the BARC accusing Republic of being involved in the scam; whereas another document from BARC stated that Republic was not involved in the manipulation.

. When Justice Pitale perused the report, he mused as to why this was not submitted to the Investigation Officer during the filing of the first chargesheet.

. The SPP clarified to the Court that there were two reports pertaining to “unusual viewership ratings” - one being the internal report of BARC and another being the forensics analysis report. Commissioner Singh was aware of the internal report on the date of the interview, he added.

. Mundargi read out statements of the accused, witnesses and informants in the case which were part of the chargesheet to substantiate that the names which were given did not include Republic channels, though Singh in the interview included Republic’s name.

“The complainant (former employee of Hansa Research, the first informant) says that there is a channel that is named but they are given clean chit. Then Hansa is called to name another channel (purportedly Republic) and when they don’t, then they harass Hansa people to name this channel,” Mundargi submitted.

. Mundargi requested the Court to consider the interview of the Commissioner from two angles - what the Commissioner spoke and what material he had to support it - as there was purportedly not enough material to make the statements that he made.

. The Senior Advocate argued that the police officer was feeding the press that a particular scam took place.

. Argument 3: No vicarious liability on ARG Outlier

. In reply to the contention of the police that Republic channels indulged in TRP manipulation, Mundargi stated that if the channel is being implicated, it is the owner of the channel (ARG Outlier) and Goswami who ought to come to Court for quashing of such FIR.

And if they are implicating Goswami in an individual capacity, the principle of vicarious liability will not apply to the company in case of a criminal offence, Mundargi submitted.

. Mundargi apprised the Court of the two incidents - Palghar Lynching and Breach of Privilege Motion - which allegedly led to Goswami being targeted for the investigation. In this backdrop, Mundargi stated that the petition on Goswami’s behalf is maintainable.

. Granting time to Hirey to seek instructions, the Court adjourned the hearing to March 18, 2021.

. Mundargi was assisted by Advocate Niranjan Mundargi who were briefed by Advocates Zoeb Cutlerywala, Vikram Kamath, Pinak Bhagwat from Phoenix Legal .

[TRP Scam] “Why keep the sword hanging over their head?” Bombay High Court to Mumbai Police in Republic TV plea

Neha Joshi

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