The Bombay High Court denied the interim relief of bail as prayed for by Arnab Goswami in his Writ Petition. It was principally argued by the petitioner that the detention of the petitioner was illegal as having been in pursuance of the illegal investigation and therefore, the Writ Petition was maintainable. On the other hand, the State had argued that the Writ Petition would not be maintainable as the remedy of bail existed in Cr.P.C. which was not explored by the Petitioner. To this, the Petitioner had submitted that the plea of bail in this case would have taken time to have been adjudicated by the lower court and further that since the Writ Petition was based on the premise of illegal detention, the petitioner could be released by the High Court under the extraordinary powers in Constitution. A lot of emphasis was placed by the Petitioner on the plea of police ‘reinvestigating’ the case after acceptance of closure report by the Magistrate. Let us see what the Court held.
MAINTAINABILITY OF HABEAS CORPUS PETITION
The Court discusses several previous pronouncements of the Supreme Court which held, primarily in cases of preventive detention, that if on the date of application for habeas corpus, the detention is backed by a judicial order, then the detention cannot be set to be illegal and the petition for habeas corpus will not be maintainable. In certain other judgments of Supreme Court cited by the Bombay High Court, it was noticed that application for Habeas Corpus was filed after the detainee was sent to prison on a remand order which remained unchallenged. It was also held in that case that since there was no illegality in detention on the date of application for Habeas Corpus, the petition therein would not be maintainable. To sum up, illegality of detention should be on the date of filing of the application for habeas corpus and not merely prior to that; meaning thereby, that for the purpose of deciding the nature of detention, whether illegal or not, the date of filing of application has to be considered and not the date of detention itself. The Court primarily relied upon Supreme Court judgment in SFIO v. Rahul Modi for holding the non-maintainability of the Habeas Corpus petition.
PETITIONER DROPPED THE PRAYER FOR HABEAS CORPUS
It appears that the Counsel for the Petitioner conceded the aforesaid position and stated that he would not be pressing the first prayer in the writ petition which concerned with issuance of writ of Habeas Corpus. The prayers were, thus, restricted only to seeking quashing of the FIR as prayer in the main petition, and stay of the investigation coupled with release of petitioner on bail during the pendency of the petition. This required the Court to pronounce upon the argument regarding illegality of the ‘re-investigation’ being carried out by the police after acceptance of closure report, viz. ‘A’ Summary Report by the Magistrate.
FURTHER INVESTIGATION AND NOT RE-INVESTIGATION BEING DONE BY THE POLICE
The Court at the outset noted that there is a difference between ‘further investigation’ and ‘reinvestigation’. The Court opined that the while reinvestigation is not permissible without prior permission of the Court, there was no such restriction on the power of police to further investigate the matter in view of section 173 (8) Cr.P.C. The Court relied upon the Police Manual to state that ‘A’ Summary Report is filed when either the culprit is unknown or there is no sufficient reason to send them for trial. The ‘A’ Summary Report does not deny the occurrence of the crime. The Court, thus, held that there was no question of re-investigation being done by the police in this case. The Court further noted that serious accusations made against the investigating officer of the suicide case by the family of the deceased. The Court noted that there is no requirement for the police to seek permission of Magistrate before investigating a case further. The Court also noticed that the Magistrate had accepted the said report without giving an opportunity to the complainant, who is relative of the deceased, to make a submission against acceptance of the closure report as is mandated by the Supreme Court judgment in the case of Bhagwant Singh .
FURTHER INVESTIGATION CAN BE ORDERED BY STATE GOVERNMENT
The Court also referred to Bombay Police Act, particularly, section 4 thereof, to hold that the Government has the power of superintendence over the police force in general. The said view was also upheld by the Supreme Court in the State of Bihar case, wherein the Supreme Court had refused to narrow down interpretation of the Indian Police Act in that case to mean that the power of superintendence of the Government is only administrative in nature and the power to decide on the investigation only lies with the police. The Supreme Court had held in that case that there is nothing in the Indian Police Act or Cr.P.C. to impose a narrow interpretation on the power of superintendence. The Court had held that investigation of a case lies within realm of the executive function of the State without interference of the judiciary. It is only when the same is not done within the four corners of law, that the judiciary will intervene. The High Court, in the case at hand, therefore, held that in this case too, the State Government had the power under the Bombay Police Act to order further investigation in the matter. So, investigation cannot be termed illegal merely because the same had been done at the instance of the State Government.
NOT A CASE FOR EXERCISE OF INHERENT POWERS
The court noted that in the exercise of inherent powers under the constitution and also Section 482 of the Code of Criminal Procedure, although the court had the power to stay the investigation or even wash the same, still that power required to be exercised with circumspection and sparingly. The court came to a conclusion that this was not one of those cases list required immediate intervention of the court in the exercise of extraordinary jurisdiction. The Court cited a number of judgments of the Supreme Court to hold that intervention in the investigation is to be done only in rare cases when the gross illegality or lack of authority was palpable. Thus, when the Court was prima facie convinced that the investigation was legal and proper, there was no case made out for stay of the investigation at this stage. Court principally relied upon Supreme Court in State of Haryana v. Bhajan Lal.
It now appears that Arnab Goswami has approached the Supreme Court in challenge to the denial of relief by the Bombay High Court.
Read the judgment of the Bombay High Court here.
© 2020 Harshvardhan Pandey