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Friday, June 9, 2023

“Can’t undermine authority of lower courts…could post case after vacations if arguments don’t finish today” – Mumbai HC on Arnab Goswami’s bail plea

While hearing Republic TV Chief Arnab Goswami’s writ petition against his arrest and remand by Mumbai Police during a special sitting today, a division bench of Justices SS Shinde and MS Karnik of Mumbai High Court told the lawyers that they need to complete the arguments on the point of interim relief today itself, else they would post the case on November 23 after vacations, reports legal site LiveLaw.in:

‘Our difficulty is that tomorrow (Sunday) we are not sitting. From Monday onwards vacations start. We are only on interim relief issue today’, Justice Shinde said during the course of the hearing.

The bench said that it needs to hear the State as well today for considering the prayer for interim release.

The Bench was hearing the Habeas Corpus petition and a bail application filed by Goswami seeking interim release. It also heard Advocates Vijay Agarwal and Nikhil Mengde for a co-accused in the matter,Nitish Sarda and Praveen Rajesh Singh, respectively.

The Court had sought clarifications on the scope of power under Article 226 of the Constitution to grant bail.

Justice Shinde observed that the Petitioner had the remedy of seeking regular bail before the Court of Sessions, under Section 439 of CrPC.

There are remedies under CrPC under Sections 438/439. Still, we are not understanding why the petitioners are not availing such remedies and seek interim bail in a writ petition.

It will send a wrong signal that though Sec 439 is there HC can be approached in writ. This will be undermining the authority of courts below, he opined.

However, the counsels insisted that the High Court has the power to directly entertain petitions for bail exercising jurisdiction under Article 226, if arrest is illegal and an exceptional case is made out.

Arrest and alleged torture

Arnab Goswami was arrested early on Wednesday, 4 November a large team of AK-47 wielding Mumbai cops led by encounter specialist Sachin Vaze, who dragged the journalist out of his residence (he was not even allowed to wear shoes) and even allegedly man-handled Goswami’s family. Police later filed a separate FIR against Arnab for  ‘assaulting’ a lady police officer.

Goswami was remanded to 14-day judicial custody by CJM, Alibag on Wednesday itself, with the magistrate rejecting the state’s demand for police custody and noting that the closed 2018 abetment to suicide case under which Arnab had been arrested had been re-opened without the court’s consent.

Goswami’s legal team has disputed the reopening of the case, and moved the High Court stating that police do not have the power to suo moto re-open the case without getting a judicial order, after the Magistrate passed a closure order in the case in 2019 based on the report submitted by police then.

Arnab Goswami’s habeas corpus application says:

“During the course of his arrest and while being transferred to Alibaug in a police van and in the custody of the police, the Petitioner suffered a 6-inch-deep gash on his left hand, a serious injury to his spinal cord, was hit by a heavy uniform police officer’s boot, was not allowed to wear shoes throughout, suffered vein injuries and was not even given access to drinking water. Additionally, the Petitioner was also forced to consume certain liquid by the police officers guarding him and choked as a result thereof.”

Senior Advocates Harish Salve and Abad Ponda, appearing for Goswami, argued on November 5 and November 6 in front of the Division Bench of the Mumbai High Court that the case is politically motivated and even if allegations are admitted, no case under Section 306 (Abetment of suicide) of IPC is made out.

Meanwhile, advocate for one of the co-accused told court that police had booked his client alongside Goswami under Section 34 (common intention), despite their being total strangers to each other. He also argued that mere non-payment of dues cannot amount to abetment to suicide, and that the entire debtor list cannot be put in accused list under Section 306 IPC (abetment to suicide).

2018 abetment to suicide case

Arnab Goswami has been arrested for a 2018 abetment to suicide case involving interior designer Anvay Naik and his mother who died by suicide in Alibaug, leaving behind an alleged  suicide note naming Arnab and two others – Feroz Shaikh and Niteish Sarda – for non-payment of Rs 5.40 crore. The case was closed in 2019 as police found no evidence against the accused, but a re-investigation was ordered in May this year by Maharashtra Home Minister Anil Deshmukh after a fresh complaint was filed by Anvay Naik’s daughter Adnya regarding the same.

Incidentally, it was in the April-May period that Arnab Goswami and his channel started posing uncomfortable questions to the MVA government for the brutal lynching of two sadhus and their driver in Palghar in presence of Maharashtra police.

Also, what is intriguing is that as per the FIR that was registered post Naik’s death, Goswami owed Rs. 83 lakh, Feroz Shaikh of IcastX/Skimedia owed Rs. 4 crore, and Niteish Sarda of Smartworks owed Rs. 55 lakhs. However, only Arnab has been arrested in a heavy-handed manner while the other two have also been remanded to 14-day judicial custody along with him as per reports. However, LiveLaw is naming Praveen Rajesh Singh as co-accused along with Niteish Sharda, but not Feroz Shaikh, adding to the murkiness around this case.

Another facet in the whole issue is that photos (dated May 2019) of Adnya and her mother Akshata Naik meeting NCP supremo Sharad Pawar at his Pune home are doing the rounds on social media.

Meanwhile, while the honourable Bench’s observation that Goswami could approach lower courts for bail under CrPC Sec 439 as it was loathe to undermine authority of lower court is welcome, other legal observers have pointed to cases like that of controversial activist Teesta Setalvad who managed to get a stay on arrest from no less a person than SC CJI HL Dattu, when she was facing more serious charges of criminal breach of trust over embezzlement of her NGO funds.

The stay was granted to Setalvad’s counsel Kapil Sibal citing an ‘extraordinary situation’ while the CJI-led bench was hearing another unrelated matter, on the same day that Gujarat High Court had rejected Setalvad’s application for anticipatory bail paving the way for her custodial interrogation by police.

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