LEGAL DEVELOPMENTS

The Mumbai police on Wednesday filed a fresh FIR against Arnab Goswami and his family members for deterring a public servant from performing his duty. The FIR has been filed under sections 353 (deterring a public servant from performing his duty), 504 (intentional insult with an intent to provoke breach of peace), 506 (criminal intimidation) and 34 (common intent) of IPC and under section 3 of the Prevention of Defacement of Public Property Act.

PRESS RELEASE OF REPUBLIC TV

Republic TV press release

ARGUMENTS AND COUNTER ARGUMENTS

As stated in the Writ Petition filed by Arnab Goswami, the investigation into FIR No. 59 of 2018 was closed and an ‘A’ Summary report that was accepted by the Chief Judicial Magistrate, Alibaug, Raigad on 16 April 2019 and there is no judicial order thereafter reopening the investigation/reinvestigation or directing the further investigation.

Arnab Goswami Arrest: 2018 Suicide Case Reopened Due To Court Order, Not Vendetta, Maharashtra Minister Claims

Arnab Goswami submitted before the court that he is filing the present application before Bombay High Court as the bail hearing before the Chief Judicial Magistrate, Alibaug, Raigad is dependent on the filing of a reply by the Maharashtra police, which will be deliberately delayed to ensure that the Petitioner remains illegally detained and his remedy is rendered infructuous and ineffective.

BOMBAY HIGH COURT ORDER

07.11.2020

We make it clear that pendency of the present writ petition/application for interim protection shall not be construed as an impediment to the Petitioner/Applicant, in case the Petitioner/Applicant if so advised, to avail of an appropriate remedy by way of filing an application for regular bail by invoking Section 439 Cr.P.C. In case such application is filed, the concerned Court shall decide the same on its own merits, after hearing all the parties as expeditiously as possible, however, within four days from filing such application

POLICE CLOSURE REPORT & THE LAW

A. CLOSURE REPORT

Section 169 CrPC (Release of the accused when evidence is deficient): In the instance of police filing, not sufficient evidence or no reasonable ground of suspicion to proceed against an accused, generally police are required to file a closure report under section 169 Cr.P.C.  Now the magistrate may or may not accept the police closure report. Court has the power to summon accused of trial under section 169 CRPC. If the Magistrate agrees with the police report, then the case is closed.

It is interesting to note that even under the Code of Criminal Procedure, 1898, in Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC 91, apex Court held as follows:

“50. Sections 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation

(1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate (Section 169) or

(2) that there is sufficient evidence or reasonable ground as aforesaid (Section 170).

In either case, the final report of the police is to be submitted to the Magistrate under sub-section (1) of Section 173. Sub-section

(3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by Section 169), the Magistrate shall make “such order for the discharge of such bond or otherwise as he thinks fit”. Now, what are the courses open to the Magistrate in such a situation? He may, as held by this Court in Abhinandan Jha v. Dinesh Mishra [(1967) 3 SCR 668: AIR 1968 SC 117: 1968 Cri LJ 97]:

(1) agree with the report of the police and file the proceedings; or

(2) not agree with the police report and

(a) order further investigation, or

(b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of.

51. The appropriate course has to be decided upon after a consideration of the report and the application of the mind of the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2(a). The order passed by the Magistrate in each of the other two courses, that is, (1) and (2)(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on the one hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court.”

B. POWERS OF MAGISTRATE UNDER SECTION 169 CRPC

If the magistrate does not agree with the police report, then the magistrate will have ample jurisdiction to give directions to the police, under section 156 (3) CRPC, to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under s. 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them.

If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under section 190(1)(c) CrPC, notwithstanding the contrary opinion of the police, expressed in the final report. Under Section 190 of Cr Pc, it is the application of the Judicial mind to the averments in the complaints that constitutes ‘cognizance’; The Magistrate has to consider whether there is sufficient ground for proceeding further and not sufficient ground for  conviction, as the sufficient ground for a conviction can be considered only at the trial;

If there is sufficient ground for proceedings, then the Magistrate can issue the process under Sec 204 Cr Pc.10 The Magistrate has the undoubted discretion, to be judicially exercised in determining whether there is a prima-facie case to take cognizance Nagawwa Vs. Veeranna Shivaligappa Konjaligi (1976)3 SCC P.736. Despite a report of the police that no case is made out, the Magistrate can reject the report and take cognizance and order further investigation under Sec 173 (8) Cr Pc.

When there is no material to proceed, there is no point in taking cognizance and proceeding further. The prosecution becomes futile exercise when the materials available do not show an offence is committed. Article 21 of the Constitution of India guarantees the fundamental right to life and personal liberty.

C. CRIMINAL TRIAL CANNOT BE USED FOR HARASSMENT

Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set in motion as a matter of course; Pepsi Foods Ltd., Vst. Judicial Magistrate (1998)3 SCC P.749 Para 28.

The process of the criminal court shall not be permitted to be used as a weapon of harassment. Once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him. It would be a sheer waste of public time and money to permit such proceedings to continue against such a person; State of Karnataka Vs. Muniswamy (1977)2 SCC P.699 At P.803 Para 8.

Unmerited and undeserved prosecution is an infringement of the guarantee of the fundamental rights under Article 21 of the Constitution; State of Bihar Vs. P.P.Sharma, (1992) Supp (1) SCC P.222 at P.265 Para 60.

No court can issue a positive direction to an authority to give sanction for prosecution when there is a police report that no case is made out to prosecute unless the court finds otherwise. Mansukhlal Vithaldas Chauhan Vs. State of Gujarath (1997)7 SCC P.622 at P.635 Para 32.

In fact, IO is not even supposed to apply to the magistrate under section 169 CrPC for discharge.