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.Read More »
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 illegalRead More »
Arnab Goswami’s petition for bail filed in the Bombay High Court has gained much traction in the media recently.
The primary question before the court as argued by the petitioner was that the court has, under the article 226 of the constitution, the necessary powers to enlarge the petitioner on bail even during the pendency of the petition, as those powers are inherent and extraordinary in nature and are not limited by any statute. The Court, however, has been reticent in accepting that argument as there already lies a remedy in the code of criminal procedure in the form of section 437 and 439 which can be pressed into service by the petitioner to seek bail before the magistrate or the sessions court. The peculiar point in the matter is that the petitioner had already moved an application for bail before the magistrate but this application was later withdrawn and thereafter the petition came to be filed before the High Court. The high court naturally posed the question as to why the petitioner was not willing to explore the remedy of bail under section 437 especially when the application was already filed. To this the petitioner replied that by way of the petition filed before the high court, petitioner was actually seeking the relief of quashing of the investigation and prosecution because they are illegal and also that the arrest made by the police is itself illegal. The petitioner also argued that since the police had no power to re- investigate the matter as the closure report was already filed in this case and it was also accepted by the magistrate. Therefore, arrest of the petitioner in pursuance of the illegal investigation was bad in law, making the detention of the petitioner illegal. Therefore bail was not necessary to be sought before the lower courts and the High Court could intervene in the matter to put an end to the illegal detention. However in the course of hearing of the petition, the petitioner had also filed an interim application seeking the relief of release of the petitioner from the detention during the pendency of the petition before Bombay High Court. The court was not inclined to grant the said relief primarily because the provisions exist in law for the petitioner to apply for bail before the lower courts.
The only point that interests me in the arguments advanced by the petitioner is as to what is the fate of detention carried out in pursuance of an investigation which is illegal. As the petitioner had argued before the court, would that not make the arrest also illegal. If that be the case why cannot the High Court while dealing with the matter for remedying illegal prosecution and investigation also grant relief of release of an accused? There are judgements which were also pointed out by the Counsel for the petitioner that if an action is illegal then the fruits of that action or whatever is done in pursuance of that action will also be illegal. Therefore, if it is really a matter of discretion for the court exercising extraordinary jurisdiction or inherent powers under the constitution then certainly the discretion can be exercised in a given case when the Court comes to a conclusion that the arrest itself is illegal because of it having been carried out in pursuance of an illegal investigation. However, that certainly will not be the case if the court is not giving a finding upon the illegal arrest based upon an illegal investigation. It is also quite possible that the court may not be willing to give such a finding even though a plea has been raised before the High Court to that effect. The Bombay High Court had clarified, while reserving its judgment upon the application for interim relief, that the petitioner could approach the lower courts under the provisions of code of criminal procedure. This I think, takes care of the urgency expressed by the petitioner. Now, the question of exercise of powers of High Court in a given case apropos the aforesaid discussion remains to be an academic question. In the articles to come, we will perhaps discuss the instances where High Courts and the supreme court have exercised powers under the constitution to enlarge a person on bail upon a finding of the detention itself being illegal. For now, let’s wait for order of the Bombay High Court to be uploaded.