Thread by @barandbench

Justice SS Shinde led bench of #BombayHighCourt will continue hearing the plea filed by @republic TV challenging the proceedings initiated by the @MumbaiPolice in the #TRPScam case today.

In previous hearing the Court demanded why @republic and #ArnabGoswami were not named as accused in the matter. The State will respond to this today.

#Republic #MumbaiPolice #TRPscam

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Bench has assembled. Hearing will begin shortly.

#Republic #MumbaiPolice #TRPScam

Hearing begins.

Sr Adv Ashok Mundargi appears for ARG Outlier and #ArnabGoswami

Chief Public Prosecutor Deepak Thakare, SPP Shishir Hiray appears for State.

#Republic #MumbaiPolice #TRPScam

Thakare states that the statement of no coercive action will continue till the pendency of the plea.

He submits that Sr Adv Kapil Sibal will appear for the State.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: What about the question we put to Hiray yesterday?

Thakare: We will invetsigate.

Justice Shinde: Investigation is going on for the past 3 months, there seems to be nothing against them prima facie..

#Republic #MumbaiPolice #TRPScam

Thakare: Milords may fix a date...

Justice Shinde: No we will continue with the hearing now. We will not discontinue with the hearing.

#Republic #MumbaiPolice #TRPScam

Mundargi begins his submissions.

Justice Shinde: Please continue your arguments on merits. We will hear you on merits.

(To Thakare): We will endeavour to find out if the seven categories mentioned in Bhajan Lal’s case can be fulfilled to decide this plea.

#TRPScam

Justice Shinde: We will hear the plea based on the evidence available as on date, with the investigation you have done in the last 3 and half months.

#Republic #MumbaiPolice #TRPScam

Mundargi continues his submissions.

He reads out statements of another witness, claims it is inadmissible but pointed out only to show that none of the petitioners are implicated.

#Republic #MumbaiPolice #TRPScam

Mundargi points out to another statement which includes the statements of the cable operators and the people in whose homes the barometers were installed.

Justice Shinde: Mundargi, if you put it all at one place, then it will be convenient for the court.

#MumbaiPolice #TRPScam

Mundargi: I will read one or two of the 40 statements that are submitted to the Court. My comment on all statements will be the same.

#Republic #MumbaiPolice #TRPScam

Mundargi (reads in Marathi) which states that the cable operator was approached by Republic for placing the channel on a particular number. He was allegedly handed over a cheque for that.

#Republic #MumbaiPolice #TRPScam

Mundargi: similar statements are at other pages. He speaks of two things, I should be put at the top in the news genre, and two he also says..

Justice Shinde: Who is this Rahul Jadhav? Related to your channel?

#Republic #MumbaiPolice #TRPScam

Mundargi: NO that apart this is not an offence. These cable operators are bunching all these things together, so news in one bunch, movies in another bunch..

#Republic #MumbaiPolice #TRPScam

Mundargi: so in the bunch of news channels, I want my channel to the first and this is no offence under TRAI or IPC. And for that there are agreements. If at all this falls under the offence my learned friends may point out to the Court.

#Republic #MumbaiPolice #TRPScam

Mundargi: SO far as dual frequency is considered, this falls under the jurisdiction of TRAI and this is treated as an offence which is a private offence, where there is bar for taking cognizance.

#Republic #MumbaiPolice #TRPScam

Mundargi: This is violation of TRAI Act and Section 34 there is bar for taking cognizance unless an officer has made a compliant. This is not the subject matter of the police investigation. This offence.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: But ED can investigate?
If state police cannot, then how can ED?

#Republic #MumbaiPolice #TRPScam

Mundargi: Let me explain..

Justice Shinde: How was ED approached? Somebody should have..

#Republic #MumbaiPolice #TRPScam

Mundargi: There was money laundering alleged, financial irregularity involved, and then an ECIR was registered. So they invited ED in this case.

Justice Shinde: They is?

Mundargi: ED does it on their own.

#Republic #MumbaiPolice #TRPScam

Mundargi: They enthusiastically proceeded with the case, and invited ED’s attention.

The crux of my argument is on this case by the enthusiasm of the local police ED’s attention was invited, not because of us. As businessmen we do not want attention of any investigative agency.

Mundargi: That is all I want to say. Now I will stop on that.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: Is there any document to show that such payments have to be made for a position in the channel numbers?

Mundargi: I am admitting to it, but I am also saying that it is not an offence.

#Republic #MumbaiPolice #TRPScam

Mundargi states that the statements are all taken for the chargesheet but there is no offence.

Justice Pitale: Maybe it is an offence under competition law or someting..

Mundargi: No it is not.

#Republic #MumbaiPolice #TRPScam

Mundargi reads from another statement.

Justice Shinde: How it operates? The agreement.

Mundargi: Firstly, this is for placement not for TRP.

#Republic #MumbaiPolice #TRPScam

Mundargi: This may be an unfair offence but not an offence.
How this operates is.. there are channels which you can choose from. There is free to air channels and there are paid channels. They are clubbed by genres.

#Republic #MumbaiPolice #TRPScam

Mundargi: Free to air channels are always available with the cable operators. How it works is, we pay a particular amount and our channel will be placed at a particular position. Such agreements are executed invariably in the industry.

#Republic #MumbaiPolice #TRPScam

Mundargi: there is nothing to check on these agreements, no barometers, nothing.
There is one sample agreement and I will point out all agreemnts.

#Republic #MumbaiPolice #TRPScam

Mundargi: this is not TRP related. At this stage I may also point out, the second bunch of witnesses..

#Republic #MumbaiPolice #TRPScam

Mundargi reads a statement of one Kailash who is a witness.

Mundargi: On October 6, they had some information, they called Hansa. We are also seeing the Malafides here..

The information was given to API Qazi (whose statement was read) by API Waze.

#MumbaiPolice #TRPScam

Mundargi: and information was given that his secret informants have informed that channels are manipulating TRP and gave two names and then Hansa employee was registered.

#Republic #MumbaiPolice #TRPScam

Mundargi: Two letters are written, both by Waze to BARC. On the night of October 7, at 7.30 the report of BARC was submitted and that report does not mention the name of people from which they got information. On October 8, the interview took place.

#MumbaiPolice #TRPScam

Mundargi shows a notice to the Court dated October 7, 2020.

Mundargi: I will connect the dots after I comment on the reports.

Justice Shinde: This mentions a different name...

Mundargi: I will clarify

#Republic #MumbaiPolice #TRPScam

Mundargi: This report on the accused Vishal Ved Bhandari’s statement to the Mumbai Police was given by BARC on October 24, 2020. So the two persons named in the FIR, the information comes in October 24.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: How is it marked to another person?

Mundargi: That is it.. He is not the investigating person. Everything is marked.

Justice Pitale: Is he junior to the investigating officer.
Mundargi: NO on the contrary..

#Republic #MumbaiPolice #TRPScam

Mundargi: this entire unit is handled by API #SachinWaze.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: The level of officers..

Mundargi: Both are APIs.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We will need clarification Mr. Thakare.

Thakare: He is senior officer.

Justice Shinde: In terms of the Length of service.

#Republic #MumbaiPolice #TRPScam

Mundargi shows a letter from #SachinWaze sent to vigilance officer of BARC with a notice under section 91 asking them to comply with notice.
October 7 @ 8.41.

#Republic #MumbaiPolice #TRPScam

Mundargi points out that the IO was different in the case and the documents were being signed by someone else, asks why the interference.

He proceeds to submit a report of BARC.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: This report is of July 2020? And the forensic analysis is of this report? What is the date of this report?

HIray says it is after September 2020 and it has analysis of the spikes of the various channels.

#Republic #MumbaiPolice #TRPScam

Mundargi (reads from the report): this is to inform you that as per Section 91 notice attached, we are attaching the statement of Vishal Ved Bhandari. The data disclosed will be shared with the IO. No emquiry.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: And this kind of enquiry is done by BARC on regular basis?

Mundargi: Yes. And there is nothing incriminating in that against us.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We are only on the periphery. On the point of Malafides, you give us the notes. We would prefer you concentrate on merits rather than travelling in periphery.

#Republic #MumbaiPolice #TRPScam

Mundargi: I will go a step further,. So far the malafides are concerned. Malafides may be considered upto a particular level upto a particular stage. The shadow of the malafides have fallen on the merits of the case and on the statements of the witnesses.

#MumbaiPolice #TRPScam

Mundargi: Even without considering the malafides, I will show to the Court by referring to cases, that unless and until there is specific material against people, they cannot proceed to prosecute against them.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: They are saying they have evidence, and they will investigate.

Mundargi: Then you make us accused.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We are considering the Bhajan Lal case and the categories. We have to consider that the offences mentioned in the FIR and whether the offences are incriminating against the petitioners.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We are looking at it in this way, can we at this stage, while the prosecution is still collecting evidence intervene or should we wait for their investigation to conclude?

Mundargi: one step at the stage of the FIR, that stage hasn’t passed. Lordshps are rightly saying that the prosecution is at the start of the investigation not the end.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: Look at the Bhajan Lal judgment. Because there is a Supreme Court judgment wherein the Court decided they would wait for the prosecution to complete the investigation.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: If we ultimately exercise our powers and quash the FIR, qua whom are we quashing? Because you are not made an accused. At the most we can consider the “chaalak, maalak” statement

#Republic #MumbaiPolice #TRPScam

Mundargi: Hence one of the suggestion was that the petition may be admitted and then they can investigate and then show the incriminating material which we will challenge, why keep the sword hanging on us?

#Republic #MumbaiPolice #TRPScam

Justice Shinde: On the conclusion of this investigation, either the IO will file a report, or a chargesheet.

#Republic #MumbaiPolice #TRPScam

Mundargi: If that is the case, then today let them say, that they will not arrest us, they will investigate the case. Give us a one week notice before filing the chargesheet and then proceed with their steps. Their design is that they want to keep the investigation open ended.

Justice Shinde: So in this scenario, what reliefs can be granted in this petition? Yes, this chaalak, maalak was considered from the chargesheet, so except that, what is there? They are also not saying that you are accused.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: It is their allegation that you are not even accused so you have no locus.
On the first day when the matter was heard, the same thing asked. What relief can be granted, because the area was grey, till the case is made out.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: Earlier what interim relief can be granted? Hence we said IO will give notice and in due compliance, Goswami will appear and co-operate.
Therefore there was no question fo arrest as such.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We are not asking you this question as representative of your petitioner but as an officer of the Court.

Mundargi: Had the press not been here, I would have answered.

Justice Shinde: But there is space earmarked for them (press). Even in SC they have space.

Mundargi: The courts may modify the reliefs..

Justice Pitale: Let us look at the prayers.. Some prayers are too wide.. You are not an accused, can you ask for transfer of investigation? The complainant may say..

Mundargi: Hansa has said.

#Republic #MumbaiPolice #TRPScam

Mundargi: The contention was all throughout that it is two fold: That you cannot have this particular category and if you want to continue with this particular category then you should make me an accused in this case.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: If they make a statement that you are not an accused then this plea does not lie. If they are keeping it open ended, then you are saying the plea can be admitted and interim be granted from arrest.

#Republic #MumbaiPolice #TRPScam

Justice Shinde mentions something about approaching various forums. Thakare submits that even in this case, that has happened.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: At which point will your officer say that there is reason to believe that there is reason to arrest.. ?

Justice Shinde: there is a concept of welfare state. The state and the investigating officer should stop at one stage. It cannot continue for years together.

Justice Shinde: these are offences pertaining to finances and not cases like Dabholkar murder cases.
There has to be objective assessment, reasonability…

Justice Pitale: They should not be considered as another form of trouble.
You can say that we will take 30 more days..

Justice Pitale: And you can say that within this time, if we do not get anything we will come to this court and make that statement. We expect that from you.

Justice Shinde: In another case where Mr Mundargi is the amicus curiae, we expressed our anguish.

#MumbaiPolice #TRPScam

Mundargi: If there is incriminating material against the man, he will be co-operate.

Justice Shinde: In a democratic set up, there has to be reasonability and objectiveness. Hence what my ld brother is asking is when will you complete the investigation.

#Republic #MumbaiPolice

Justice Pitale: You cannot have it both ways. You cannot make them an accused and then say you have evidence. If you have evidence make them an accused so that they know what kind of relief can be granted against them.

#Republic #MumbaiPolice #TRPScam

Mundargi: I cannot have this sword hanging on my head.

#Republic #MumbaiPolice #TRPScam

Justice Pitale: And you are representing a client who can afford to come to this court with this proceedings. Think of a person who cannot come to court and will be put behind bars.

#Republic #MumbaiPolice #TRPScam

Justice Shinde (To Thakare): This is not just for this investigation, but it was also for all investigations and for all agencies to which this would apply like the CBI, ED, etc..

Justice Pitale: There was a case before the Supreme Court CJI where the CBI was called caged parrot

Justice Shinde: In one of the statements, one MR Ghanshyam is named. What are your submissions on that?

Mundargi: I have clear submissions with the supporting case law.

#Republic #MumbaiPolice #TRPScam

Justice Shinde: We do not know in every statement your employee is named or not.

Mundargi: There Ghanshyam Singh (VP) and another is Vikas Khanchandani (CEO)

#Republic #MumbaiPolice #TRPScam

Justice Pitale: He is already an accused and out on bail.

Mundargi: The apprehension is not mis-founded, it is very much real. Because despite having an ABA pending, he was arrested on Sunday.

#Republic #MumbaiPolice #TRPScam

Mundargi: First they were wanted accused, then they were suspects.
How can they go in reverse?

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Mundargi: For both employees, they want to go in reverse, is what my submission is.

Justice Pitale: Wanted accused, then suspect and then innocent.

Mundargi: That they will not do.

#Republic #MumbaiPolice #TRPScam

Mundargi reads out three statements from the chargesheet which pertain to the persons in whose homes the barometers were installed.

#Republic #MumbaiPolice #TRPScam

Mundargi points out from the statements that they had considered only statements of 8-9 people which according to them affected the TRP ratings of the channel throughout the country which is not possible.

#Republic #MumbaiPolice #TRPScam

Mundargi states that even their own auditor stated that 4-5 barometers will not impact the TRP manipulation throughout the country.

#Republic #MumbaiPolice #TRPScam

Due to paucity of time, the Court asks Mundargi to continue with his submissions on Monday.

Bench clarifies that the queries that fell from them were merely dialogue and not formation of any opinion.

#Republic #MumbaiPolice #TRPScam

Hearing ends.

Matter posted for hearing on Monday.

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