The Supreme Court had earlier released Arnab Goswami on interim bail during the pendency of his petition before the Bombay High Court thereby setting aside the judgment of the High Court denying the relief to him. In the judgment released recently, the Supreme Court strikes the cord of personal liberty as a justification to set aside the impugned judgment. In doing so, the Court holds that the FIR, prima facie, does not meet the requirements of law, i.e., section 306 read with 107, IPC. The Court notes that the High Court ought to have dealt with the merits of the FIR at this stage and ought to have come to a prima facie conclusion which should have then formed the basis for interim release of the accused/applicant. I beg to differ with the judgment of the Supreme Court in the analysis done below.
The Court extensively refers to authorities in para 47 to 54 of Part I of the judgment to state the ingredients of the offence under section 306, IPC. In doing so, the Court notes a number of previous judgments wherein the allegation of harassment of deceased by the accused was present in the FIRs. The Court, in those judgments, refused to interfere with the FIR in wake of allegation of harassment coupled with suicide by the deceased. The Court also notes that for harassment of victim by accused to constitute abetment to suicide, it must of such nature so as to compel to victim to commit suicide and it should have some degree of proximity with the act of suicide. In other words, there has to be an incitement or facilitation on part of the accused. The incitement can be express or implied in the circumstances of the case where suicide was the direct result of harassment by the accused. This is made clear upon reading of section 107 IPC which defines ‘abetment’. The said position is clear by a plain reading of the provision and a plethora of precedents; so, there is no need to expound the same further.
In the case at hand, the FIR, quoted in para 7 of the judgment, does state of harassment of deceased by the accused by refusing to pay dues despite repeated demands because of which the deceased was in great pressure. The same is also corroborated by the suicide note left by the deceased. Thus, even prima facie, it cannot be said that ingredients of offence, as expounded by the precedents from time to time, are absent.
What is otherwise striking is that the Court does not take note of the legal position that an FIR is only an ‘information’ and need not contain the myriad particulars of the offence. It is settled that FIR is not an encyclopaedia of the various circumstances leading to the offence but is merely the process which sets the investigation into motion. This was also pleaded before the Court and same was also noted by the High Court in its judgment. To see merely the FIR in order to quash the same is a rare thing to do and rightly so, as much remains to be discovered by the police during the investigation. If an FIR alone is considered to be the yardstick of the prosecution’s case, it will obliterate the very need for an investigation. The Court ought to have been mindful of the fact that FIRs are usually registered by lay persons as the first piece of reportage to the police and therefore it is neither necessary nor practical to expect it to minutely meet the ingredients of an offence as defined in statute book. This is particularly true for offences such as abetment to suicide as the ingredients of the offence are fairly abstract existing as matters of intention and can be analysed only after a court has all the materials of investigation before it. The precedents on this point also state that even absence of names of certain accused persons in the FIR is not fatal to the prosecution as it is only the first information given to the police for investigation.
For this reason, practice of analysing FIR threadbare in order to see whether it meets the requirements of statute book must be deprecated especially at an initial stage. If not, multitude of FIRs would be quashed before evidence can be unearthed during investigation leading to gross failure of justice. We need not forget that we live in a country which still remains to be largely uneducated and consisting of rural population. Further, what is stated in an FIR often happens to be the paraphrased version of the police officer. It is simply not reasonable to expect legal precision from a document such as an FIR to set at naught the criminal process right at the very outset. Such an approach is shrouded in technicality and is an antipathy to substantive justice. An FIR can be quashed at the initial stage only in the event of it being so grossly silent on the aspect of the very commission of crime that the Court sees no basis whatsoever for an investigation to even take place.
The Bombay High Court in para 43 of its judgment had, after noting precedents, observed that quashing of FIR is to be ordered with great caution and only in rarest of cases as generally courts will not intervene during investigation which is the domain of the police. The said approach is line with the precedents and also seeks to serve the idea of substantive justice. The High Court had also noted that the investigation was ongoing and that the complainant could get the police to investigate her complaint after great efforts. In a bid to protect the rights of an accused, rights of complainant cannot be kept at bay. The plight of the complainant has to be understood in the right perspective vis-à-vis the practical problems of administration of justice in our country especially the problems with respect to law enforcement.
Therefore, observation made by the Supreme Court in Para 55 that the High Court failed to prima facie analyse the FIR for considering prayer for interim bail does not seem to be correct. After having noted that the investigation into the case was otherwise legal and could not be obstructed by filing of ‘A’ Summary Report before the Magistrate, all that was left for the High Court to do was to direct the applicant to explore regular remedy of bail in law. How could the Court come to a prima facie opinion regarding merits of the FIR, especially with regard to an abstract ingredient of ‘incitement’ in section 107 IPC, which could only be seen in light of the investigation and the evidence unearthed therein? There is simply no material before the Court to judge the ‘incitement’ or lack of it on part of the accused at this stage. To quote the FIR verbatim to deduce the lack of incitement by accused is sheer technicality which does not go well with the broader idea of justice.
The Court thereafter goes into the discussion about the liberty of individual and how it is of paramount importance. There is no quarrel with that position. What is of significance is that the Court does not deal with the impugned judgment passed by the Bombay High Court on its merits. The Court does not deal with:
- The fact that the applicant/accused had applied for bail before the Magistrate and had withdrawn the same under apprehension that it would take time to be decided;
- The fact that High Court while disposing of the application for interim relief directed the lower court to decide the matter in 4 days in the event of applicant/accused seeking bail before it. This is quite an extraordinary direction by the High Court to remedy the apprehension of the accused;
- The fact that applicant had approached the Supreme Court while he had applied for bail before the Sessions Court pursuant to the direction of the High Court.
The judgment by the Supreme Court sets a dangerous precedent wherein one can approach the High Court under Article 226 of the Constitution or section 482 Cr.P.C. challenging an FIR on the grounds of lack of ingredients of an offence and the Court may release the accused on interim bail upon ‘prima facie’ satisfaction of absence of those ingredients without even having the benefit of evidence being collected during investigation. Before the Supreme Court, the State had raised the plea that the Court only had the FIR before it and not the development in the investigation being carried out and therefore it would be grossly pre-mature to hold a prima facie view of absence of offence.
One is bound to think, in this scenario, about why the accused could not be directed to avail the remedy in Cr.P.C. for regular bail especially when the High Court directed time bound disposal of the same. Would it not render the provisions of bail in Cr.P.C. otiose as FIR can be challenged on merits in every other criminal case with a prayer for interim bail. If benefit is granted to an individual then the same should be the treatment for all persons. The judiciary, which is an arm of the State, cannot discriminate between individuals approaching before it for liberty. Needless to say that there is no objective yardstick to be drawn for instances where the said approach should or should not be followed.
The Court ought to have discussed the said issues before it judged the case at hand only on the point of liberty of individual. The fact of short circuiting of legal procedure in this case is too glaring to be ignored. There is nothing on record to substantiate the apprehension of the accused that he would be met with delay in exploring regular provisions of bail. As has been stated above, Court could not have come to a prima facie conclusion about the merits of the FIR at this stage. Thus, there was no occasion to enlarge the applicant/ accused on interim bail in this case.
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