The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant‘s application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power. (Para 56)
Arnab Manoranjan Goswami v. The State of Maharashtra & Ors.
Criminal Appeal No. 742 of 2020 (Arising out of SLP (Crl) No. 5598 of 2020)
27 November, 2020.
The Hon’ble bench of the Supreme Court comprising of Justice D.Y.Chandrachud and Justice Indu Malhotra held in a case that while the High Court must be circumspect in exercising its powers on the basis of the facts of each case, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power
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. The appellant anchors shows on both channels. 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. The genesis of the FIR can be traced back to December 2016, when a company by the name of ARG Outlier Media Private Limited awarded a contract for civil and interior work to another company, Concorde Design Private Limited which was owned substantially by Anvay Naik (the deceased) who committed suicide in the 2018. In his suicide note he named the appellants as the reasons for the suicide. The wife of the deceased file the FIR accusing the appellants. Eventually, the case was closed on
On 16 April 2019, the SHO at Alibaug Police Station filed a report in the Court of the Chief Judicial Magistrate for an A‘ summary. The CJM passed an order accepting the report and granted an ‗A‘ summary. An A‘ Summary indicates a case where an offence has been committed but it is undetected, in that there is no clue about the culprits or the property, or where the accused is known but there is no evidence to justify their being sent up to the Magistrate for trial.
On 4 November 2020, the appellant was arrested at about 7:45 am, after the case was reopened previously that year, in connection with FIR 59 of 2018 dated 5 May 2018. At 2:37 pm, the appellant filed a Writ Petition before the Bombay High Court, invoking the provisions of Articles 226/227 of the Constitution and Section 482 of the CrPC.
The division bench of the High Court 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 (2017) 2 SCC 779. Further, 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 to consider the submission of the appellant that the allegations in the FIR do not disclose the commission of an offence under Section 306/34 of the IPC. It is against this order the present appeal is preferred.
Learned counsel for the appellants 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) 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. (iii) 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. (iv) The interest in preserving the procedural hierarchy of courts must give way to the need to protect the appellant‘s personal liberty given the well settled legal position that the default rule is ‗bail, not jail‘.
Learned counsel for the respondent submitted that (i) The High Court declined to express a prima facie view on the issue of mala fides since an opportunity was being granted to the State to file its counter. (ii) 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; (iii) The High Court has drawn a balance between the rights of the accused and the family of the deceased victim. (iv) Relying on the judgment of this court in Vinubhai Haribhai Malaviya vs State of Gujarat Counsel submitted that 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. (v) The appellant must pursue his remedy in accordance with law under Section 439 of the CrPC for which the liberty has been granted by the High Court.
The Court, after referring to its judgment in State of Telangana vs Habib Abdullah Jeelani , extracted relevant portions of that judgment and explained how the High Court has erred in interpreting that judgment. In the above regard the Court observed the following:
Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal (1992) Supp. 1 SCC 335 include a situation where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs State of Maharashtra (2019) 14 SCC 350. (Para 44)
Dealing with abetment to suicide the court referred to its judgments in a number of cases including Amalendu Pal v. State of West Bengal, M Arjunan v. State, Ude Singh and Ors. v. State of Haryana, Rajesh v. State of Haryana and Gurcharan Singh v. State of Punjab and observed the following:
The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC. (Para 7 of Arjunan v. The State)
Applying the legal principles with the facts of the present case, the Court observed the following:
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. These observations, we must note, are prima facie at this stage since the High Court is still to take up the petition for quashing. Clearly however, the High Court in failing to notice the contents of the FIR and to make a prima facie evaluation abdicated its role, functions and jurisdiction when seized of a petition under Section 482 of the CrPC. The High Court recited the legal position that the jurisdiction to quash under Section 482 has to be exercised sparingly. These words, however, are not meaningless incantations, but have to be assessed with reference to the contents of the particular FIR before the High Court. If the High Court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. The High Court was clearly in error in failing to perform a duty which is entrusted to it while evaluating a petition under Section 482 albeit at the interim stage. (Para 55)
The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant‘s application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power. (Para 56)
The Court went on to lay down six factor principles to be considered while granting bail under Article 226. Further, the Court noted the following:
These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. 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. (Para 59)
Bringing out the importance of Human Liberty and the role of courts in preserving the same, the court laid emphasis in the following words:
Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting. (Para 60)
More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail‘. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the ‗subordinate judiciary‘. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system‘s primordial interest in preserving the presumption of innocence finds its most. These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P. vs Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vs CBI, (2012) 1 SCC 40. eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system
41. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. 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. (Para 63)
Concluding, the Court observed:
Every court in our country would do well to remember Lord Denning‘s powerful invocation in the first Hamlyn Lecture, titled ‗Freedom under the Law‘43:
―Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, ‗My Lord, I have an application which concerns the liberty of the subject‘, and forthwith the judge will put all other matters aside and hear it. …‖
It is our earnest hope that our courts will exhibit acute awareness to the need to expand the footprint of liberty and use our approach as a decision-making yardstick for future cases involving the grant of bail. (Para 65)
Consequently, the appellants were released on bail in accordance with the order of the Supreme Court dated 11.11.2020. Accordingly, the appeals were disposed off.
View/Download Judgment: Arnab Manoranjan Goswami v. The State of Maharashtra & Ors.
Kalidharun K M
