If this court was not to interfere today, we are travelling to the path of destruction of liberty, says Justice Chandrachud
New Delhi (ILNS): The Supreme Court bench of Justices DY Chandrachud and Indira Banerjee granted bail to Republic TV editor Arnab Goswami following hours of deliberations from both sides.
The order said: “Arguments have been heard during the course of the day. The appeals before the court arise out if the order of the Bombay High Court of 9 November by which the order of interim bail and disposal of writ petitions has been rejected. In the meantime we are of the considered view that the high court was in error in rejecting plea for interim bail.
“Appellants shall be released on interim bail with personal bond of Rs 50,000. The concerned jail authorities, commissioner of police is directed to ensure this order is complied with forthwith.”
Before delivering his order Justice Chandrachud wanted to make sure and wanted a few minutes to consult with Justice Banerjee.
“The submissions of the learned counsel appearing on behalf of the rival contesting parties would be evaluated in the judgment for which reasons shall follow. The judgment is reserved,” said the Supreme Court.
The Supreme Court has held, “the High Court was in error in rejecting the application for grant of interim bail.” Accused shall not make any attempt to tamper with evidence and shall not influence witnesses, said the Apex Court.
During the hearing both sides were heard in detail. Senior Advocate Harish Salve led the arguments for Goswami, while Senior Advocate Kapil Sibal led arguments for the other side.
During arguments, Sibal had told the bench: “The Supreme Court will be passing an extraordinary order if it gives interim relief only on the basis of the FIR.” He asked the court to wait till day after tomorrow when his (Arnab’s) regular bail plea comes up before the Sessions court. “Why would you think the sessions court cannot decide this fairly?” he asked.
Justice Chandrachud was making a careful decision. He discussed with Salve and Senior Advocate Mukul Rohatgi about the power of the police to investigate further after ‘A summary’ had been filed.
The bench said that ‘A summary’ was filed when there is no evidence although an offence has taken place.
In the discussion Rohatgi and Salve raises the point that the police jumped the gun in commencing its investigation and in arresting their clients without the ‘A summary’ having been set aside by a court of competent jurisdiction.
They submitted that the entire exercise is thus improper and illegal.
Rohtgi said: “If a man kills himself complaining that the high court adjourned his case for 10 years, should that high court judge be arrested?” he also said that this is a case for an immediate interim relief of bail.
Sibal, representing the Maharashtra government, resisted the interim order.
Salve argued that the Bombay High Court made a gross mistake of not giving interim bail to him. “Was I asking for an extraordinary relief in the high court?”
Earlier, Rohatgi and Senior Advocate Gopal Sankaranarayanan had argued for the two co-accused in the case. Both submitted that they are the collateral damages in the fight between Arnab and the Maharashtra government. “They have no direct association with the Republic TV founding editor,” they commented.
Salve had asserted that the re-investigation ordered by the Maharashtra Home Minister was illegal “and this is where mala fide becomes apparent.” He said that a constitutional court must look into these aspects when approached and technical argument on regular bail etc can’t come in the way.
He said: “Last month, a man in Maharashtra committed suicide saying the Chief Minister failed to pay salary? What you do? Arrest the Chief Minister? There has to be direct and proximate cause to invoke abetment to suicide charges.”
Before the lunch break, Salve had said: “It will be a bizarre situation when a magistrate accepts a closure report, but the executive says it has the power to reopen the investigations on its own.”
Justice Chandrachud forced logic into the issue, saying: “Forget the heat and dust of the entire matter. If there is a financial transaction; A owes money to B. If B commits suicide due to financial stress, is that abetment? If this court was not to interfere today, we are travelling to the path of destruction of liberty.”
He also clarified: “Left to myself, I wouldn’t watch that channel. But you have a citizen today who is in jail for this matter.
Said the judge: “District and high courts don’t grant bail in cases and people are in jail for months. This court is burdened with it. If constitutional courts don’t protect liberty who will do it? This is happening every day. In a case from West Bengal where a girl tweets that Coronavirus is not being dealt with, the West Bengal police issues notice to her saying ‘we will show you reality’.
“We are deeply concerned about it. If we don’t preserve human liberty. Forget the way he screams and yells, what concerns me is the value ascribed to human liberty. If this is what our state governments will do to people courts have to step in. This is the ultimate reason for the existence of our Constitutional courts.
“We got a case a few days ago, (in which) a young woman was in a relationship with a man and found out he was married. She committed suicide. Is that 306?”
Added the judge: “The victim is entitled to a fair investigation. Let the investigation go on. But if state governments target individuals on this basis let a strong message go out. The answer is simple. You don’t like a television channel you don’t watch it. I myself prefer to cuddle with a good book.
“When we issue a judgement we get tweeted about.”
Sibal said: “Your lordship is not aware of what kind of tweets I get.”
Justice Chandrchud said: “Our democracy is extraordinarily strong. The point is that Governments must ignore this.”
Sibal said: “We have taken 19(1)(a) to an extreme extent. It’s not an absolute right.”
Justice Chandrchud said: “The CJI has said something very significant. He said we expect responsibility on all sides. And Mr Salve said the point has been noted and will be conveyed. We are seeing dozens and dozens of cases. District courts, High courts don’t grant bail.
Advocate Amit Desai for Maharashtra police had earlier said: “It’s important to note the principles of law that are being laid down. Statutory scheme provides for bail plea to be filed before the Sessions court. The high court was very careful in saying we are not making any comments. In the night of the judicial remand, petitioners filed a bail application, but then withdrew the plea and moved the HC. They are trying to move convenient court.”
He added: “There are ideological differences yes. Even I don’t watch this channel. How many petitions for quashing FIRs are filed? Thousands, every day. Courts don’t allow exercise of writ jurisdiction where a plea for quashing FIR is filed, courts don’t convert that to bail plea.
“When there is a remedy available bail plea can be filed. The Sessions court is hearing the matter. I’m sure the Sessions judge would consider the matter. Why do you change the hierarchy of the legal system in a case of this gentleman? The Sessions judge will decide the matter. I’m arguing on the realities of how the criminal justice system works.
“When a police custody remand application is made, the police has to justify custody remand. The magistrate in this case applied his mind and said judicial custody.”
Advocate CU Singh for the Naik family said: “Copy of the closure report on an investigation need to be given to them. Not informed, despite repeated requests, about acceptance of copy.
Salve had said before that the high court found the power of Mumbai police of re-investigation by confusing the designation of the officer who has this power. “Much has been made of the informant (wife) not being told about the closure report. She was told in 2019 that there is a closure report. I spent 1.5 hours arguing that abetment of suicide case is not made out.
Read the order here;24646_2020_33_2_24738_Order_11-Nov-2020