Thread by @barandbench

#BombayHighCourt will continue hearing the bail plea filed by former BARC CEO Partho Dasgupta in the #TRPSCAM case being investigated by the @MumbaiPolice.

@parthodasgupta

Dasgupta was arrested in December and is presently in judicial custody for his alleged involvement in the TRP scam case.

Justice PD Naik hearing the plea had directed Dasgupta’s lawyers to withdraw their pending plea in the Supreme Court.

Senior Advocate Abad Ponda and Advocate Shardul Singh appearing for Dasgupta begin their submissions.

Ponda: The chargesheet was filed against me in January 2021. I was remanded to police custody from time to time.

Justice Naik: your bail was rejected bh lower court after chargesheet?

Ponda: yes.

Ponda: This scam pertains to the Television Rating Points (TRP) scam. Now some facts, I was associated with BARC and I was the then CEO.

Ponda: There were barometers installed. And the data from those barometers was put into algorithms for measuring.

Ponda: Data is important for advertisements. The more points you have, the more advertisements you will get.

Ponda: There is not a single advertiser in who has complained against the scam. There is not a single wrongful gain which the police has been able to show.

Ponda: also there was another representative from BARC, Romil Ramgarhia who had an equally important role and he was an active participant.

So his role was far worse than mine.

Ponda: There is an oversight committee report also which I will show.

Ponda: There is a watch and another object which they claim Arnab Goswami, Editor in Chief of Republic TV has given to me. And I can show that I have purchased those items from me and my wife’s expense.

Ponda: Another aspect is that whole the channels are accused of having committed TRAI violations, and those charges are not against me, well as the charges against Romil and Me are that we have committed the main offences of TRP manipulation.

Ponda: The final circumstantial evidence is the Whatsapp chat evidence allegedly between Goswami and me.

Ponda: If there is abnormal activity in our outlier policy then we will just delete that data. It is our own SOP. And we are not some puppets or a government office.

Ponda: The filing of chargesheet has some finality qua the investigation in criminal law.

You have to complete investigation within 24 days. If not then you arrest that person and if you manage to give reasons then you may get remand custody for 6 days like in this case.

Ponda: this chargesheet was filed within 60 days time.

So what is the reason for detention now? He cannot be kept in detention like that.

ARG outlier is before High Court and they have challenged the FIR. They have been granted protection from remand. What is my need in detention? Why should I be behind bar?: Ponda

Ponda: The trial is also not going to start anytime soon. They had every opportunity to fully question me.

Ponda refers to a judgment where in police custody has been discussed.

Ponda: The state may show that the investigation is open but then why did file a report if investigation is not complete?.

Keeping the probe open does not require my custody.

Ponda: They have no reason now to show that investigation remains open under Section 173(8) of CrPC.

Ponda: There is a judgment of Ram Narang wherein the court has held how investigation opens only after fresh evidence is brought on record.

Ponda: Post the detention it is not permissible to keep me like this.

We are not dealing with some special statute like MCOCA. I have to prove reasonable grounds to get treat me not guilty. That is not the case with IPC.

Ponda: Let me show milords the facts.
Romil and my role I will compare from the chargesheet.

Ponda: Romil has 10 counts and was in jail for 62 days.

Ponda reads out the from the chargesheet the charges against them.

Ponda: the items against them are word to word, line to line same.
Infact there is also a spelling mistake but I will come to that later.

Ponda: in items 10 between Romil and me they have even copied and pasted one item and put me as accused 14, whereas I am 15.

Ponda: According to them these are observations and what is important to note is in the forensic report that Partho was aware of the manipulation and he was silent.

Right below that Romil was directly involved, whereas I was only negligent.

Ponda: Chargesheet and report all same but I am negligent and he is directly involved.

Justice Naik: what was the ground of his bail?

Ponda: They said investigation was complete. Please see the order.
The moment he was bailed I was arrested.

Justice Naik: Chargesheet was filed?

Ponda: No it was pending chargesheet but they said he need not be kept in detention as investigation is complete. And this order has not be challenged.

Ponda: Now I will proceed about the watch and the silver jewellery.

The jewellery and the recovery was based on confession to the police which is inadmissible.

Ponda: The watch is purchased in 2019 by Samrajini Dasgupta my wife for Rs 55000. He is not a public servant to be bribed.

Ponda: I have receipts from Vaman Hari Pethe jewellers for the silver jewellery. The bills go on and I do not want to trouble milords with that.

But they have emptied my wife’s trousseau just on the claim that it iS involved in TRP scam.

Ponda: Coming to the TRAI violations, there is no imprisonment and hence there cannot be an FIR.

Ponda: Subramanian Swamy’s case was upheld that there cannot be FIR for defamation.

In TRAI also there cannot be criminal proceedings as it is not a criminal offence.

Ponda: Romil getting bail is another important point here.

The grounds where his bail was the stereotypical arguments. That he is the brain behind etc.

Ponda: I am also placing on record the report of Vikas Khanchandani CEO of Republic TV who was apparently the main accused.

Ponda: they have taken the repeated stance that he is the king pin, the main brain, etc.

There is Vinay Tripathi and Vishal Bhandari.

Ponda: regarding whatsapp chats I will only say it is loose talks. Those are not admissible and need corroborative evidence.

I am not saying arrest them. But then the whole group under Republic TV is protected and I am behind bars.

Ponda: You are continuously making statements before the Division Bench that arrest will not be done and then why am I behind bars?

Justice Naik: How big is the chargesheet?

Ponda: over 3000 pages.

Justice Naik: all chats?

Ponda: no no this has emails but let me tell you. He was not even in Republic TV then. Goswami was in Times Now.

Ponda: I used to talk to other channel heads as well.

Special PP Shishir Hiray points out that there is some discussion about lawyers and judge.

Ponda: Milords I am saying it is loose talks. No one should be detained because of loose talks.

Ponda: Plus there was no Republic then and there was pointing out that Times Now was the highest rated channel.

Ponda: There were talks of Pulawamma and all.

Justice Naik: what were the talks on Pulawamma? Is that not part of the compilation?

Ponda: That is not relevant to this case.

That statement is made by a person who has been protected by a statement of the Mumbai Police before the Division Bench.

Justice Naik: Are you also charged with Section 409?

Ponda: Yes, I have been charges of abetting with Hansa employees but the ones who have committed the offence are out on bail.

Ponda: This is not a discharge application I am not expecting a judgement on discharge, my arguments are only limited for bail.

Ponda: Plus there is an application for transfer of proceedings to a different agency of Mr. Goswami. If that succeeds there is no point in keeping him behind bar.

Ponda: and my bail application is not just for medical but there is no denying that there are medical conditions with his spine.

Ponda with Singh’s assistance concludes the submissions.

Special PP Shishir Hiray begins his submissions.

Hiray clarifies certain points at the outset.

Hiray: the allegations against the accused are not just TRAI, but includes others.

Hiray submits that the statement made by Sr Adv Kapil Sibal was made with reluctance.

Hiray submits that the scam happened in a three levels.

The barometers for measurement were installed by BARC and Hansa.
The viewers were paid monthly for watching their channel.

Justice Naik asked him so who are the accused? The advertiser?

Hiray: The law cannot be set in motion by one person. The chargesheet has to be seen.

Hiray: If at all any other TRP company is to be formed, then they cannot get permission from the Ministry. This is a unique company for measuring TRP rating.

Hiray points out that no interested persons should be in BARC and hence TRAI was brought in.

Hiray: BARC was formulated by the society for the society’s benefit.

Hiray: Dasgupta was the Chief Executive Officer. Romil was into finance but Dasgupta was the main managing executive officer.

Hiray: And the Statement that we have not challenged Romil’s order is incorrect as the same has been proposed from the Ministry of law and Judiciary and we will get a green signal any minute

Hiray: another point is that the person occupying the post of CEO needs clearance from the Ministry. no tom, dick or harry can occupy that position. No other company head needs clearance.

Hiray: When framing these guidelines, the guidelines and policy were framed keeping in mind the national interest.

Hiray: These are guidelines which have immense importance even from national point of view.

Hiray: Hansa is Audience Research Company which fits barometers and they managed viewers to watch some particular channels. The money was not from BARC or Hansa but from the channels.

Hiray: but how will the channels know because those details are with BARC and Hansa.

Ponda interrupts that Dasgupta is not the MD, he is only CEO.

Hiray: MD/CEO he is one and the same.

Hiray: Hansa and BARC had signed non-disclosure agreements.

Either someone from BARC or from Hansa had the information to disclose. And Hansa was in direct control of BARC.

Hiray: The inevitable conclusion is that the information was leaked from BARC.

Justice Naik: The applicant leaked the information?

Hiray: seems to be the inevitable conclusion.

Hiray: there are 44 barometers and a few 100 panel homes and even if a few are managed then that leads to a major increase in TRP and advt revenue.

Hiray: Hansa should not disclose any information against them that is what they have done.

Admittedly one Nitin Deokar lodged the complaint with a limited point of view regarding manipulation of TRP.

Hiray: He has specifically mentioned that certain persons are induced into these panel homes and they ensure that few channels run more than other channels. And this complaint opened a pandora’s box.

Hiray: A person who was interested in the fairness of the system had filed the complaint.

Hiray: I would like the point out a statement and then proceed with other statements.

Hiray: The BARC forensic audit report was made in February 2020. It was neither induced by investigation nor by anyone else.

Hiray: The TRP manipulation was going on since 2017 and this was between the two channels.

Times Now has issued notice to BARC against such manipulation.

Hiray reads a statement of market analyser of BARC, Pekam Basu.

Hiray: That Romil and Partho were directly involved in the manipulation of TRP.

Hiray: Basu made a complaint at the inception of the scam and her complaints were not paid heed to.

Hiray: I am pointing out important findings in a report by independent agencies.

This is an agency appointed by BARC itself.

Hiray: What was expected from BARC was that independent report has to be generated.

Justice Naik: So sum and substance of your case is that his involvement is there.

Hiray: full involvement.
The chats between Partho and Romil point out that they would discuss about the channel positions.

Hiray: and then finally I am submitting these chats between a certain channel owner/ anchor and Partho.

Justice Naik: Does this include all chats about national security? And has he been charged for that?

Hiray: In all fairness he has not been charged.

Hiray requests the Court if he can continue tomorrow.

Court grants permission.

Hearing concludes.

Hearing to continue tomorrow at 11 am.

[TRP Scam] "I am not saying arrest them, but whole group under Republic TV is protected and I am behind bars", Partho Dasgupta: Read a LIVE account of the Bombay High Court hearing today

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