Thread by @barandbench

#BombayHighCourt will hear plea filed by #ArnabGoswami challenging his illegal arrest and wrongful detention by the Maharashtra Police for his role in abetting a suicide today.

Bench of Justices SS Shinde and MS Karnik will commence hearing at 12 pm

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Sr. Advs. Harish Salve and Aabad Ponda appearing for #ArnabGoswami finished their submissions yesterday.

However the Court wanted to hear the other side in the matter and adjourned the matter for hearing today.

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#ArnabGoswami will be seeking for bail and interim stay on proceedings in the hearing today.

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Read application here: barandbench.com/news/litigatio…

Court hears the plea filed by Nitesh Sarda, one of the accused in the FIR of abetment of suicide of Anvay Naik.

Adv. Vijay Aggarwal appearing for Sarda submits the plea was for quashing the FIR, and he has also sought for bail.

#anvaynaikcase

Court: Make good your contentions on the illegal detention, and wrongful arrest.

Your application is with the petition, not separate under S.439 of the CrPC.

Aggarwal: Basic issue is illegal detention.

Aggarwal: Basically whatever I will say will point out the illegality of their actions.

The Magistrate’s order is under challenge but there is no stay, it still stands.

I am not challenging the order, I am saying the order records, the arrest is illegal.

Court: Please don’t expect petitions are filed and disposed off on the same day without hearing all sides.

Aggarwal: I am not asking for final reliefs, I am probably not audible because of too many mikes are on.

Court: There are many people in hearing, including journalists.

Aggarwal: The other side is yet to file an affidavit. I will make good my case. My arguments against the detention are supported from the judgment of the SC - Vinubhai Haribhai.

Court: Ok we will hear you.

Aggarwal: Let me point out from the FIR - there are three names mentioned.

This is the only thing stated. Three different persons, different areas, and businesses.

See the printout, S.306 (abetment to suicide) was printed and S. 34 was added by hand.

#anvaynaikcase

Aggarwal: Please see the closure report I have annexed in my petition.

It says that Anvay Naik and his mother’s death have no connection with the accused, there is no link, and there was no evidence to support the allegations in the FIR.

#anvaynaikcase

Aggarwal: In my case, the amount is meagre. In this case, there is no evidence to show connection between accused (Sarda) and the deceased (Anvay Naik)

Let me show you the remand order which clearly records that there was no link in the events and the accused.

Aggarwal supplements his arguments with judgment.

Aggarwal: I am saying the FIR was investigated rightly, the closure report was filed rightly, it was accepted.

The other points have been argued by Sr. Advs. yesterday.

Court: What is your stand that closure report is accepted without informing the informant (Akshata Naik)

Aggarwal: There is an infirmity in the order, but it was not challenged.

Court: Magistrate was bound to inform the informant about the report.

Aggarwal: Is it for police to sit in appeal and to revise the order?

Court: We are examining this contention.

Aggarwal: But I have the answer to Milords question which I was expecting will stare me in my face.

Court: We will ask the police how can they reopen a closed case.

Aggarwal: Milords, they will say they have, I will say they don’t. It I for Milords to decide, but let me make my submissions.

He relies on more judgments to support his contentions which is a three judge bench on the issue of re-investigation.

Aggarwal: I will show how the provisions of S.173(8) have been understood in courts.

Law of the land is that even if you find the Magistrates view is wrong, you go to the court and seek judicial order to re-start.

Aggarwal: I am a 27 yr old boy, my name is written as owner of company, I own only2-3% stake in the company. I am straightaway arrested in a closed case. Since the FIR is challenged, request milords to grant me bail in the interim.

Aggarwal: Main relief is quashing of FIR and the CJM’s order says arrest is illegal, so I can be released.

Court: We have a provision of regular bail under S.439, then why should we consider. The CrPC provides remedies.

Court: CrPC says while exercising these provisions, do not make these provisions redundant.

You do not want to avail that remedy in the lower court, and come here under writ jurisdiction.

Court: Don’t you think that with remedies available if we grant remedy, then everyone will come to the high court.

It will send wrong signal that though S. 439 is there, then why come under writ.

It will also undermine authorities of lower courts.

Court: We can understand that quashing is before us. We are examining it here.

We mentioned in the first hearing - at the cost of repetition - the averments goes hand in hand for writ for habeas corpus.

Today they are in judicial custody.

We have to see what is the law.

Court: We have limitations, if specific provision is there, we have to consider that.

We are in dialogue, this is not our opinion.

Aggarwal: Milords ask why not S.439, why writ?

Aggarwal: Please record my statement - my prayer for habeas corpus can be deleted.

When the courts are being approached for protection everyday from arrest - we see high courts granting them protection despite having remedies under S.438.

Aggarwal: As an officer of the court I am making the submission that Milords can quash FIRs, investigations, but can Milords not have powers to release from illegal detention?

Milords can declare the building illegal but not permit me to come out of a room?

Aggarwal: Just see my compilation milords, I have judgments from this HC for illegal arrest.

Court: Milords we are just making it clear, we are not going to sit tomorrow and after that in the vacation, understand the paucity of time and try to concise your arguments.

Court: We are sitting today because we had heard one side yesterday.

Aggarwal: 10 mins on the clock Milord.

Corrigendum*

Court: We are just making it clear, we are not going to sit tomorrow and after that in the vacation, understand the paucity of time and try to concise your arguments.

Aggarwal: Milords let me show you judgments where the SC had released people on bail under Art. 32.

Let me also add that powers under Art. 226 are wider than Art. 32.

Aggarwal continues pointing out more judgments from his compilation which he has submitted to the court to show how bail was granted by higher courts.

I am submitting that a person in judicial custody can be released on bail from the HC, even anticipatory bail.

Aggarwal: Here is a man before you, from Calcutta to Delhi. As a collateral damage of mere Rs. 55 lakh due, he is arrested and in jail.

If the foundation, which is the FIR is illegal, the foundation of his detention is weak, he ought to be released.

Aggarwal concludes his submissions after showing one final judgment to show if initial action is not in consonance with law, then subsequent actions are also illegal.

If a court can grant final relief then granting interim relief is not usurping powers of the lower court.

Court: We are not going to intervene in the remand order only because it is in revision before the Sessions Court.

Aggarwal: But there is no stay on the order.

Court: Without prejudice to contentions, after hearing the other side, we may grant or we may not, but you can approach the sessions court, we can direct that you can decide it by Tuesday or Wednesday. Just dialogue, not opinion Mr. Ponda.

Sr. Adv. Ponda: Milords we have advised it is best to exhaust remedies.

We filed application before the CJM. The magistrate said she is barred because it should be before sessions court.

Ponda: We showed her judgments and she allowed bail application, but she said reply can be filed in due course and that could have gone after long.

Ponda: We told the lower court today that bail is being argued here, so the lower court adjourned to Monday.

The Sessions court will not discuss the issues for the quashing and the illegality.

Ponda: We moved the precipe before the Chief. Our main point is that the investigation was illegal in a closed case. The arrest is an act from this investigation and hence we want a finding on this point.

Ponda: I will come in rejoinder, let Mr. Desai finish his arguments.

Court: We may or may not be able to give reliefs, but our bench always gives the relief of hearing. We will hear everyone.

Adv. Nikhil Mengde begins his submissions for Feroze Shaikh, the second accused in the abetment to suicide FIR.

Mengde submits that if the police wants to re-investigate, then they have to approach a court of law with a report seeking permission which was not taken.

Mengde: It is my submission that upon appropriate report being filed for seeking re-investigation, then the Magistrate will apply his mind an decide whether to re-open or not.

This was not done.

Court: Can you throw light on what is “A” Summary, “B” Summary and all that.

Mengde: “A” is when there is no evidence to justify his being sent to Magistrate for trial.

“B” is when there is no evidence to file chargesheet against the accused.

“C” is when mistake of fact.

Mengde invites courts attention to couple of SC judgments.

Mengde concludes his submissions by reiterating that considering the actions of the police officers of re-starting the investigation were illegal every act following that was illegal and hence the accused ought to be released.

Mengde: I have not applied for bail, because I am saying the arrest was itself illegal. The prayer of habeas corpus can be dropped.

Adv Subodh Desai appearin for Adnya Naik, daughter of Anvay Naik begins submissions.

The plea seeks re-investigation in the matter and take action against the officers “who did a miserable job of investigation” in the first instance.

Desai: In May 2020, we received a letter from the DG Police that the investigation was transferred to the Maharashtra CID police.

Till March of 2020, there was no communication on the FIR filed in 2018.

Desai: We come to know that the case is closed from Republic TV’s claims on their channel.

We received the certified copies on the report only in May 2020.

Court issues notice in the petition which is waived by the State.

Court asks Sr. Adv. Amit Desai to begin his submissions for the State.

Desai: I hope to keep it short.

Court: Mr. Ponda we are hearing this only for interim reliefs.

Desai: Maintainability is my first submission.

Desai: Fortunately all petitioners counsels have acknowledged that habeas corpus is not maintainable.

I have submitted some judgments on this issue so that this issue is closed. Because there are only statements for deleting, no formal amendment.

Desai submits the following judgments:

1. Jagisha Arora (2019) indiankanoon.org/doc/26207666/
2. Tasneem Rizwan Siddiquee (2018) indiankanoon.org/doc/100407809/
3. Saurabh Kumar (2014) indiankanoon.org/doc/118760660/

Since courts do not have complete compilation, Desai requests the court for 15-20 mins of time to arrange for copies for everyone.

Court rises for a break, will re-assemble at 3.10 pm.

Hearing resumes.

Desai begins with the Siddique judgement.

Desai: Position of facts is there is a remand order in place.

Remand is by CJM not in challenge.

Sourabh Kumar you may see now.

Desai: The case is after cognizance. The facts of our case are that a bail application was filed and then it was withdrawn thereafter.

It was canvassed that withdrawn because notice returnable was not given.

On instructions I say that the application was not served on them.

Desai: On instructions, I say, that if intimation is given to us, and copy is served, then my prosecutors will be present for the hearing.

Saying that the matter would have gone for 14 days is too much, as it is oral hearing.

Desai: Even Feroze Shaikh filed an application, but withdrew the matter.

We were happy to go on with the matter.

We won’t have asked for adjournment.

This is the observation in Sourabh too.

Desai then refers to the Col. Dr. B. Ramachandra Rao vs The State Of Orissa judgment.

Read here: indiankanoon.org/doc/1271836/

He points out that the CJM’s order was not passed in malice. It was lawful order.

Desai:Then for #ArnabGoswami to come and make such allegations is unfair.

Desai: Now kindly see judgment of Ankit Mutha (passed by Justice SS Shinde himself.)

Read judgment here: indiankanoon.org/doc/165743360/

Desai: In terms of your Lordships, as a matter of law and propriety, it would not be proper for your Lordships to change the hierarchy provided by CrPC and allow them to invoke the extra-ordinary jurisdiction.

Desai: I will just show one more judgment.

This is to see under what circumstances the extra-ordinary jurisdiction can be invoked.

Desai refers to a judgment from the SC.

That HC should refrain from exercising this jurisdiction, unless extra-ordinary circumstance.

That is the reason why your lordships should be cautious in exercising that jurisdiction.

Desai: On principle they have raised only one issue that is illegal arrest. Detention cannot be not challenged, because the order is legal and not challenged.

Desai: Revision for remand is an entirely different issue.

As issue of arrest is different from the issue of custody.

Desai: The illegal arrest also goes away after the magistrate has directed for custody.

You are saying arrest is illegal hence Habeas Corpus then it is a different. But here, the FIR has sought to be quashed.

This is matter on investigation. Your Lordships will note that Art. 4, 21 is applicable to victim also.

Desai: It is the duty of the State to balance rights of victims from the State.

Investigation initiated cannot be brought to a stand-still at this stage, because material will have to be gone into by the court for quashing.

Desai: Prima facie the investigation cannot be stayed, it must be allowed to go on ex-facie.

Having said that I will point out that the exercise of jurisdiction under Art. 226 is not proper.

You cannot have two ways.

Desai: If there are circumstances of suspicion then the investigation agencies have to investigate.

Refers to Narayan Maları Thorat judgement of SC on the same set of facts as the present.

Desai: Issue of quashing FIR because no offence is disclosed is different from illegal arrest and question of detention.

Court: After framing charge, till commencement of trial is there a stage ?

Desai: After framing of charge, the trial has begun, as per justice Nariman’s judgment.

But I am not going into it, because it is not important.

Desai: There is one situation of S.173(8) of approaching the court, the other is complete investigation has happened and then there is ‘C’ summary, then the rights of both sides arise.

Desai: Hence Bhagwant Singh judgment says victim’s rights have to be considered, hence notice has to be given.

There are judgments on “A” “B” and “C” summary report.

Desai: It is acceptable that it is “A” summary. No accused says it is “C” summary.

If it is “A” summary, then there is an offence, but the stage at which it was looked at was not proper.

That is not closure report as contemplated under “C” summary. It is not discharge.

Desai: “A” Summary - the principle sough tot be canvassed of going though the procedure before arresting the accused may abscond too.

Desai: If I narrow the proposition to “A” Summary, in my humble submission, the argument that there should be re-opening on order of the court will raise difficulty in case of “A” summary.

It is an incomplete investigation.

Desai: I am saying on “A” Summary the law is different, I hope to argue in more detail at a later stage.

Now Going to the issue of power of magistrate and power of the state.

Desai begins with the Nirmal Singh Kalon judgment - Read: indiankanoon.org/doc/1041213/

Desai: The Power of the state to investigate is different from the power of court to investigate.

The state govt has issued an order and it seems to be an Annexure in the Adnya Naik petition.

Now this is State Govt. power.

Desai: It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, but it is another thing to say that IO will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.

Desai: Hence, the Raigad police went to the CJM to inform that the investigation has been restarted, as the court’s intervention was not required. Hence “seen and filed” is considered (because here the State intervention is there, not court).

Desai: So the magistrate can start supervising like in the Case of Sakeri Vasu.

Thereafter statements with the Magistrate under Sec. 164 were appointed, so the Magistrate was cognisant of the investigation. Further investigation took place in that regard.

Desai: Prima facie with all this material, it is seen that the victim has been knocking the door since February.

Malice and malafide arguments, I don’t want to say more because the matter is subjudice.

Desai: This is between the discussions in the Assembly on the coverage by #ArnabGoswami

Desai refers to the petition to point out that from the dates of the discussion of the assembly and the appointment of the officer for the investigation, to say that there is malice is not evident.

The question for today is custody.

Desai: The way I have been reading the order it just seems to me that the arguments were not valid, but she did not say anything about the investigation being illegal.

So they should go before the appropriate forum. The trial court is the appropriate forum for that.

Court: Order says what?

Addl.PP Deepak Thakare reads the remand order for the convenience of court.

Desai: This para says that the objections raised by the lawyers of accused are irrelevant.

Desai refers to a judgment of Gujarat HC, where the court allowed re-opening of a case.

Considering the legal position, there is no Habeas Corpus, the bail application remedy is available before the Trial Court and the initiation of the state is permitted under S. 36 of CrPC.

Desai: This is not a fit case for grant of interim relief. They have remedy before the trial court.

They may get bail when if the Trial court deems it fit.

But to exercise this jurisdiction will lead to floodgate of applications.

Desai: I am mostly on the other side, but as an officer of the court, I must add that exercising the jurisdiction is not for this stage.

Desai concludes his arguments.

Sr. Adv. Shirish Gupte appears for the informant (Akshata Naik) the respondent in #ArnabGoswami’s plea.

Gupte submits that most of his arguments have been able covered by Desai.

He sought to add only one judgment in the maintainability issue.

Gupte: We were added only after the Court’s direction.

There is a remand order legal judicial order, who has kept him illegally?

CJM Alibaug is also not a party.

Gupte: Have we no concern for the family who lost its members?

There is harassment to the victim’s family.

Much harm is caused to me. Balance of convenience if seen, the victim’s family has suffered more harm than #ArnabGoswami

Gupte: What urgency is there that he gets three days of hearing?

Court: We are sitting today only because there was consensus for today.

Gupte: For a minute do not think I am criticising, we are proud of your lordships’ court.

Court: And we will not think of beyond a minute. Even if it is criticism, then we will not feel bad about it.

Court: A magistrate in Bombay has 10,000 cases. We disposes emergency parole, furlough matters within a week.

Court: Let us go back tot he Law Commission Report which gave judge and litigant ratio, has it happened? NO.

We try to meet the legitimate expectation of the victim.

Gupte: I am only on the point of Salve’s argument on the harm if released on bail.

Gupte: I am saying there will be harm to the victim’s family.

Gupte then relies on the judgment of Bhagat Singh judgement 1985.

Read judgment here: indiankanoon.org/doc/118375/

Gupte refers to another judgment to show that informing the informant about the summary report is mandatory.

Gupte submits the additional judgment on maintainability of the petition.

He adds that he has been ably represented by the state through Amit Desai.

Gupte: Overall I submit that the previous set of officers handled the investigation highhandedly, however now I am hopeful, there will be sufficient investigation.

But to release the accused at this stage is unfair to the victim’s family.

Gupte: Let him go to the Trial Court under S.439 CrPC and let the Sessions Court decide.

Gupte concludes his submissions. He adds that the Bar would be happy to recognize the efforts put by the Bench during the pandemic and..

Gupte: … risking their lives and their family’s lives for imparting justice.

Court: Do not misunderstand us too.

Gupte: It is between the Bar and the Bench milords, not for the general public.

Gupte concludes his submissions.

Sr. Adv. Devdutt Kamat appearing for the Commissioner of Police submits to the Court that there are no allegations against the Commissioner and hence his name ought to be dropped.

Salve objects on the ground that the court is pressed for time.

Kamat points out that the allegations are against Raigad police and there is no need for the Mumbai Police Commissioner to be a party.

Salve interjects.

Kamat submits a judgment to point out that there is some responsibility while making submissions.

Salve taunts that the Commissioner ought to consider this while making press conferences.

Kamat points out that there is no press conference here.

Salve: Do it now then.

Salve: Desai cited a case which reminds us what happens in great injustice - referring to Jagdish Arora.

Mr. Gupte’s submissions were irrelevant today, he has to show what they were doing for two years.

Milords we have judgments of SC, that HC can grant relief.

Salve: powers under A.226 for HC are at par with the powers under A.32 for the SC.

Can the court grant relief to us? Yes.

Salve: what is this writ petition based on? Quashing of prosecution. Not only because no process is followed, but also because malice.

Else we can go to the trial court and get it sorted.

Salve: The petition on TRP case and the petition heard today morning, where someone has said on affidavit that I am being compelled to incriminate someone.

Salve: Would this entitle me interim relief? Yes.

It is an open and shut case. I can be entitled to bail to as per Desai.

Desai interjects: What I meant was he is entitled to apply for bail. If the Court deems it fit, then he will get bail, or he may not.

Not quite what you said.

Salve: We all know where your heart was when you said that.

Salve proceeds with submissions from the petition.

Salve: The “A” summary is of 2019, the challenge is only after this petition was brought before your Lordships.

He will have to explain what was he doing between this time.

Salve: Proximity, direct cause, this is important.

Desai never said Your Lordships do not have powers. He said S. 439 is there.

Salve concludes his arguments.

Adv. Nilesh Ojha appearing for the intervenor points out that the power to order investigation is neither with the state nor the magistrate.

Ponda: The order is for re-investigation, it is only HC who can order that.

Court says that they cannot pass an order right now, as they have to consider the compilations and submissions made to them.

Salve requests the Court to give its verdict, either of acceptance or rejection, and adds that he prays for the interim to be granted.

Court: Notice has already been issued, time of 4 weeks granted for replied.

In #ArnabGoswami’s IA, arguments are heard by both sides.

Reserved for orders.

It shall be not be contstrued as an impediment to the accused to approach the Sessions Court under S. 439 of CrPC.

Court: The concerned court shall decide the case at a the earliest however within 4 days of the filing.

Similar order passed in the identical IA filed by #NiteshSarda

Court clarifies that the date for pronouncement of the order will have to be clarified with the Chief Justice and they will try to do that as early as possible.

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[Breaking] "If we grant remedy, then everyone will come to the High Court", Bombay High Court observes; reserves order in Arnab Goswami pleas. #ArnabGoswami #arnabarrested #BombayHighCourt @republic @MumbaiPolice

Read full story: bit.ly/36gOOr1

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