Thread by @AnirbanFromRLF

Summary of my legal views on #Arnab Case.. Some may find favour with his supporters & some with his critics.
1. 306 IPC Offence doesn't seem borne out even if allegations of Complainant are assumed to be true.
2. Reopening after closure required explicit Court order.
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3. Police has powers for Further Investigation u/s 173(8) CrPC w/o Court permission but as per SC, it is good practice to apply & take formal permission.
4. Further Investigation is different from Reinvestigation.
5. Reinvestigation can be ordered ONLY BY HC & not Magistrate.
2/n

6. Reopening of a closed case possibly amounts to Reinvestigation and not Further Investigation. If so, it required Order from HC.
7. Police seem to have made some Application to Court in this case & some further steps were taken from which Court was aware of Reinvestigation.
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8. Without formal Order from Court on Further Investigation, Application made by Police & further steps were of no consequence. And if Order was required from HC, no Reinvestigation could have been done at all without such an order. In either event, reopening seem bad in law.
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9. Arrest straightaway after reopening of a closed case without Summons or Notice also seem to be bad in law.
10. Whatever be our perception on the case & procedure, one cannot resist arrest. If one does, he invites force & cannot complain later. Arnab needlessly resisted.
5/n

11. When Cops come to arrest in a Cognizable Case like Sec 306 IPC, no force on earth can stop that unless there is prior Court Order.
12. Remedy in case of Arrest is Bail before Magistrate and that failing, Bail before Sessions and that failing, Bail before HC and then SC.
6/n

13. Maharashtra Home Minister openly announced Reinvestigation in May 2020. That was the stage to go to HC for Quashing of FIR & stopping of Reinvestigation without HC Order.
14. Upon announcement of Reinvestigation in May 2020, one could have also gone for Anticipatory Bail.
7/n

15. First step after arrest is Remand Application by Police and grant or non grant of Police Custody by Magistrate. Bail Application is futile before Remand Application of Police is decided. If Remand Application is rejected, the Magistrate puts Accused in Judicial Custody.
8/n

16. Judicial Custody thus sets ground for Bail. Bail after Judicial Custody is not guaranteed but Bail can't be granted unless Judicial Custody is granted & Judicial Custody brightens chances of Bail. In that sense, rejection of Remand Application & Police Custody is victory.
9/n

17. Arnab achieved victory immediately after arrest as Alibaug Magistrate rejected Remand Application & Police Custody & granted Judicial Custody. That was huge.
18. The logical next step was making a Bail Application before Alibaug Magistrate and that was correctly made.
10/n

19. Alibaug Magistrate in her Order wrote that "Arrest seems to be bad". That conclusion was not only on the aspect of reopening without a Court Order BUT WAS ALSO BASED ON FACTS OF THE CASE. Repeat. Not just on the aspect of reopening.
20. Logical next step was Bail.
11/n

21. Reading of the Remand Application Rejection Order of Alibaug, especially considering the fact that it extensively dealt with the facts of the case and as to how Sec 306 IPC is prima facie inapplicable, made it highly probable, if not certain, that Bail would be granted.
12/n

22. Bail Application was made before Magistrate & withdrawn. Excuse given was that Magistrate didn't give a date for hearing. THAT IS UNBELIEVABLE ON MULTIPLE COUNTS.
23. Just doesn't happen in any Lower Court in Maharashtra that Application is received without giving date.
13/n

24. Also inconceivable that Alibaug Magistrate boldly rejects Remand Application in a high profile arrest by a detailed reasoned order on facts & law & then receives a Bail Application w/o giving date.
25. Withdrawing that Bail Application & moving HC had other motives.
14/n

25. High Court Petition of Arnab was one for Habeas Corpus on the ground that "Arrest was illegal". It was based on finding by Alibaug Magistrate, though that finding was just not on reopening but on facts.
26. High Court Petition was just not unconventional but was BIZZARE.
15/n

27. HC Petition required HC to first come to a finding that reopening without a formal Court Order was bad in law. In all probabilities, it is bad in law but for HC to come to such finding required detailed hearing on facts and law. It could not have been done overnight.
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28. There is neither any categorical statutory provision nor any categorical judgment of SC on point of reopening of a case after closure which would have made it an open and shut case and warranted an immediate order on the point. All parties had to be heard exhaustively.
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29. In the meantime, the Prosecution had challenged the Remand Application Rejection Order of Alibaug Magistrate before the Sessions Court. That also created an impediment on HC. HC couldn't have interfered straightaway by curtailing a judicial process that had started.
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30. Even if one assumes that Alibaug Magistrate gave a legal finding that arrest was bad because reopening was bad (which she didn't), a finding of a Magistrate on Law is not the last word on Law (even if right) and HC couldnt have simply taken that & proceeded to give Bail.
19/n

31. HC Petition of Arnab invoked powers of HC under Art 226 COI. True that HC has immense powers under Art 226 COI & more than even SC under Art 32 COI. But HCs have refrained from using that power in their discretion when Efficacious Alternative Remedy was available.
20/n

32. In case of Arnab, it is not just that Efficacious Alternative Remedies were available, MUCH SIMPLER REMEDIES WERE AVAILABLE. Forsaking those, Lawyers of Arnab sought Remedies that were unconventional & complicated & with impediments. And they demanded them immediately.
21/n

33. It would have been a different story had Arnab approached HC in May 2020 for Quashing and for restraining Maharashtra Government from reopening a closed case without formal HC Order. But circumstances were evidently different now.
22/n

34. Arnab & his Lawyers were literally forcing themselves on Bom HC & trying to dictate terms & set new rules.. It was not a case where Yakub Memon was to be hanged at dawn & hence SC had to be woken up at midnight.. For all his fan following Arnab is an ordinary citizen.
23/n

35. In all fairness, at the very inception of hearing, Bom HC offered to give a direction to Sessions Court (that's cutting one round before Alibaug Magistrate) to dispose off a Bail Application if made in a time bound manner. But that was rejected. "We want here and now".
24/n

36. HC even sat on Saturday & heard all Parties & that was into Court Vacations & has kept Matter for Orders on Monday.. Findings have to be given on critical points of Law.. But his supporters continue to make allegations.. Why didn't Bom HC sit beyond 6 PM & pass an Order?
25/n

37. Arnab should get Bail. But that should come in usual process from Magistrate / Sessions. HC may grant him Bail but wouldn't be wrong if without getting into merits, it doesn't & asks him to go to Sessions Court.
38. Delay in getting Bail is solely due to bad strategy.
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