Of State malice and dangerous precedents: Who argued what in Arnab Goswami bail plea

Republic TV Editor-in-Chief Arnab Goswami was granted bail today by the Supreme Court in the case relating to the alleged abetment of suicide of interior designer, Anvay Naik. Six Senior Advocates appeared and argued on Wednesday in the matter on behalf of various parties. The hearing lasted through the day before a Bench of Justices DY Chandrachud and Indira Banerjee..Below is a summary of the main arguments advanced by each lawyer..[Breaking] "If we don't interfere in this case today, we will walk on a path of destruction", Supreme Court grants bail to Arnab Goswami.Harish Salve for Arnab Goswami. No abetment to suicide: One of the main arguments advanced by Salve was that the facts do not disclose an offence of abetment to suicide under Section 306 of Indian Penal Code.“The person was in financial difficulty and, thereafter, committed suicide but how can it be abetment to suicide. For abetment there must be direct and indirect act of the commission of the offence. If tomorrow, a person commits suicide in Maharashtra and blames Government, then will the Chief minister be arrested?”.Case was closed in 2019: Another contention raised by Salve was that the case was closed by Maharashtra police back in 2019.“We are past FIR stage and it was lodged way back in 2018 after which it was probed and closure report was filed Closure report was filed in April 2019,” he said. .Re-investigation can be only on order of the court: It was also Salve’s case that a re-investigation can happen only on a judicial order passed by a court and not on the direction of the government. In this case, he said, the Home Minister directed the DGP to re-investigate the case and such re-investigation is per se illegal.“The A Summary Report (Closure) needs to be first set aside in a judicial forum. SC judgments say Magistrates power cannot be taken away to re order a probe or set aside an A Summary report (Closure report). Truth has a nasty habit of sneaking out. They say that since police has been directed to re-investigate they are doing so. It is a dangerous precedent to say that after a magistrate has accepted an A Summary, the Executive can order a re-investigation,” he said..Malice on the part of the State: The thrust of Salve’s arguments was that the reopening of the case was motivated. Salve took the Court through the chain of events that led to the reopening of the case, making reference to the previous FIRs lodged against Goswami. Reference was made to the flak received for his reportage on the Palghar and Bandra incidents, and the breach of privilege motion issued by the Maharashtra Assembly."Challenge to TRP is still pending. Mumbai Police is accused of coercing witnesses. 7 days the man is being incarcerated. Look at the discussion in assembly. it shows the political system is angry with me," he said. .Not a terrorist: Salve said that Goswami has not been charged with a grave crime and keeping a person in jail during the trial is an exception and not a rule“Let us assume there is an FIR which is three years old why will you arrest him and then put him in Taloja with hardened criminals. Is Goswami a terrorist, is there a murder charge on him? This cannot be assumed to be yet another criminal case. Will heavens fall if this man is released. Jail is an exception, not a rule,” he added..CJM refused to grant police custody: It was also highlighted by Salve that the Chief Judicial Magistrate, Alibaug, while hearing the plea by the Raigad police for custody of Goswami, had observed that the connection between the accused and the suicide needs to be proved before police custody can be granted.“Then why is his custodial interrogation required? Is this not enough to release him on bond? Prima facie link between accused and suicide cannot be established. Judge should have released him on bond. That was not to be. Hence this plea before you,” it was submitted..Mahalakshmi Pavani for Acharya Vikramaditya .Threat to life for Arnab: Pavani submitted that Arnab's life was under threat in Taloja jail."When he was being taken to Taloja jail, he was seen on TV saying that his life was at risk. He has threat to life in jail," Pavani said..Kapil Sibal for Maharashtra.On prima facie evidence: The Bench asked Sibal whether a prima facie case is made out to which he replied that it is a pertinent issue but that aspect has not been argued by Salve.“My friend Salve did not argue this. You have raised an important question. All that Salve argued was assembly notice or Palghar incident.".Cannot grant bail based on FIR: Sibal urged the Court to not set a "dangerous precedent" by granting bail on a reading of the FIR, when the plea for quashing the FIR is before the High Court.“You cannot say I will read FIR and grant bail. Then this principle will be followed in all High Courts. There is no basis in law to grant bail on the basis of the FIR. f you say there is no offence is committed then, quash the FIR itself. But that aspect is pending before the High Court,” he said.Sibal also cited the case of detention of journalist Sidhique Kappan by Uttar Pradesh police, recounting that the case was sent to the Allahabad High Court by the Supreme Court and pointing out that Kappan is still languishing in jail..Amit Desai for the State of Maharashtra.Remedy under Section 439 CrPC open: Desai submitted that the Bombay High Court had refused to interfere in the matter as the remedy for regular bail under Section 439 of the Code of Criminal Procedure was open to him. Goswami had then moved Sessions Court for bail and that plea is slated for hearing tomorrow.“Sessions Court is hearing the matter...why would the High Court change the hierarchy of the system for a gentleman accused under Section 306? If Sessions Judge is hearing the case then why should this Court interfere now?" he asked. .Article 226 should be exercised to quash FIRs in rarest of rare cases: Desai admitted that a High Court is entitled under Article 226 of the Constitution to enter the domain of examining the issue relating to bail for an offence of abetment of suicide under Section 306, IPC. However, it should be exercised sparingly and only in rarest of rare cases.“Thousands of petitions for quashing FIR is filed and that's why it's cautioned that let Article 226 be exercised in rarest of rare cases. If under Article 226 bail has to be granted then we can convert all High Courts in the country into Bail Courts," he said. .Victim’s rights: Desai pointed out that the victim had been knocking the doors of justice for quite some time and the victim’s rights should also be given due respect.“Duty of the State is to respect the victim and probe. Victim has filed a substantive petition and she has been continually knocking doors of justice. She only learnt about the closure from a Tweet. She started requesting for an inquiry.".On reopening of investigation: It was Desai's case that there are matters in which 'A Summary' report is filed if the accused cannot be located or investigation cannot progress. However, if the accused is found later, the 'A Summary' report need not be challenged nor the court's permission taken before re-investigating the case. “Saying that court’s permission is required is a serious question on the State's ability to probe a case,” Desai contended.He also pointed out that the closure report was filed in 2019 without hearing the victim’s counsel..On proximity of Goswami with the offence: The court queried about Goswami's connection to the case likening it to charging an employer for non-payment of money to a labour contractor."What needs to be probed is the commission of offence which led to the suicide of the person. Police has to probe circumstances what led to the suicide and that establishes abetment to suicide," Desai replied. .CU Singh for Naik’s wife.Was kept in the dark about the closure report: Singh said that his client was not served a copy of the closure report though it is mandatory to serve the same on the first informant..Power to reinvestigate: It was his argument that the power of the police to re-investigate after an A Summary was filed is absolute. “The (2019) closure report was filed when nothing concrete was found,” he said..Intervention by Supreme Court will set dangerous precedent: Singh said that intervention in the matter when a bail plea is already pending before the Supreme Court will set a dangerous precedent“He has already moved a bail application which is yet to be heard. What kind of a message will it send and short circuit an entire process? This petition is an overreach when his option lies at a lower court,” Singh argued..Gopal Sankaranarayanan for Feroze Shaikh.No proximity to the incident: Appearing for one of the co-accused, Feroze Shaikh, a Director of an animation studio, Sankaranarayanan argued that his client had no proximity to the incident.“Three individuals are accused to have abetted a suicide, who don't know each other when he (Naik) himself said he was harassed by creditors. Here was no whisper of my client in the letter by his wife. Liabilities cannot be extrapolated like this where multiple organisations are involved,” he said.Sankaranarayanan also said that executive cannot order investigation when a Magistrate has accepted a closure report..Mukul Rohatgi for Nitish Sarda.No connection with the case: Rohatgi also maintained that his client has no connection with the incident, the other co-accused or Naik.“My client is 25 year old and director of a company. I don’t know Goswami and I don't know Shaikh. Work was done some time ago. The contractor was asked to deposit GST and a case is pending in Calcutta. I have no connection with Naik and FIR shows no cognizable offence.".Minister has no jurisdiction to sit over court order: Throwing his weight behind Salve’s arguments, Rohatgi too submitted that a case cannot be re-investigated based on an executive order after an 'A Summary' report was filed and accepted by the Magistrate.“If I am correct on this, the re-investigation after Home Minister's order was illegal and ultra vires. My remand was illegal and I have a right to be released. Minister had no jurisdiction to sit over a court order. Somebody can go to Minister and say open a case and it's opened. Why is the Home Minister sitting on appeal?” he remarked.Re-investigation can be ordered only by the Constitutional court and if that be so, then the arrest was illegal per se, he added..Mahalakshmi Pavani for Arnab GoswamiThreat to life for Arnab: Pavani submitted that Arnab's life was under threat in Taloja jail where he is lodged."When he was being taken to Taloja jail, he was seen saying that his life was at risk. He has threat to life in jail," Pavani said.