Mumbai: The Supreme Court will hear tomorrow the special leave petition filed by Republic TV anchor Arnab Goswami challenging the November 9 order of the Bombay High Court refusing him interim bail in the 2018 abetment to suicide case.
A vacation bench of Justices D Y Chandrachud and Indira Banerjee will consider the petition of Goswami, who has been under custody since November 4 in the case.
The special leave petition filed through Advocate Nirnimesh Dube states that the High Court erred in coming to the conclusion that power under Article 226 of the Constitution should not be exercised when there is an alternative efficacious remedy and it erroneously relegated the Petitioner to a remedy under Section 439 of CrPC when the case involves personal liberty.
The Bombay High Court on Monday refused to grant interim bail to Arnab Goswami, who was arrested and remanded to 14 days judicial custody on November 4, and two co-accused in the 2018 abetment to suicide case.
The Court said that no case was made out for the exercise of extraordinary jurisdiction by the High Court under Article 226 of the Constitution when the petitioners have the alternate remedy of seeking regular bail under Section 439 of the Code of Criminal Procedure(Goswami and the co-accused had approached the High Court seeking writ of habeas corpus under Artice 226 against the arrest and remand in the case).
It is contended that the finding that the Writ Petition was not maintainable because the Petitioner was in judicial custody at the time of filing the Habeas Corpus petition, is erroneous inasmuch his prayer included a prayer for quashing the entire proceeding, which is clearly maintainable.
“There is an error apparent on the face of the record in as much as the impugned order dated 9 November 2020 records that – There is no dispute that as on the date of filing of the petition, there was already an order of the jurisdictional Magistrate for remand of the petitioner in custody. – and proceeds to deal with the matter based on this erroneous understanding.
The Hon’ble High Court has failed to appreciate that the arrest of the Petitioner on the morning of 4 November at around 7:45 A.M. in connection with the FIR No. 59 of 2018, was illegal, mala-fide and politically motivated, malicious and without due course to the process of law,” the pela states.
Further, “it failed to appreciate that at the time of filing the writ petition before the Hon’ble High Court, the Petitioner was not even produced before the Ld. CJM and therefore the question of the existence of an order of the jurisdictional Magistrate for remand of the Petitioner in custody does not and cannot arise.”
It is also submitted that the High Court proceeded to deal with the Habeas Corpus law when it was categorically made clear that the Petitioner is not pressing that prayer and was interested only in the prayers for quashing of the case and the investigation, and for the grant of interim relief like bail.
The Bombay High Court had refused to consider the remarks made by CJM Alibag in his remand order, relating to (il)legality of Goswami’s arrest, as the same has been challenged before the Court of Sessions.
The Petitioner has contended that the High Court erred in not dealing with the CJM’s order “which was placed in great detail at the time of final arguments.”
It is also stated that on various aspects, the High Court rendered final finding even though the only prayer and arguments advanced were on the question of bail. For instance, it is pointed out that even at interim stage, final findings have been returned on the question of “A” Summary report.
The High Court had held that even where a case is closed the power of investigation under Section 173(8) CrPC remains despite the order not being set aside by a judicial forum.
The Petitioner has submitted, “The Hon’ble High Court having come to the conclusion that an investigation under Section 173(8) CrPC is possible even after the acceptance of the closure report, has therefore virtually concluded that the arrest of the Petitioner is legal.”
It is reiterated that the Raigad Police proceeded against Goswami, without challenging the Magistrate’s closure order of 2019. In this context it is submitted that a mere “seen and find” endorsement does not amount to setting aside the earlier closure order and in any case, the Magistrate could not have reviewed the order, in light of Section 362 of CrPC.
“The Hon’ble High Court did not even advert to the judgments such as Vinay Tyagi and … which suggests that once a closure report is accepted, the curtains come down on the case. Therefore, it is an error to permit the police to reopen the investigation under Section 173(8) CrPC without a judicial order for reinvestigation,” the plea states.
The High Court had held that it cannot consider the submissions of Senior Advoate Harish Salve that the FIR does not disclose any offences against Goswami at present as the investigation is in progress. The Court has posted the writ petition for further hearing on December 10.