ARNAB MANORANJAN GOSWAMI versus THE STATE OF MAHARASHTRA & ORS.
[2020] 11 S.C.R. 896, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Arguments
ARNAB MANORANJAN GOSWAMI
v.
THE STATE OF MAHARASHTRA & ORS.
Criminal Appeal No. 742 of 2020
NOVEMBER 27, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Constitution of India – Arts. 226 and 227 – Code of Criminal
Procedure, 1973 – s.482 and s.439 – Penal Code, 1860 – s.306 and
s. 34 – The appellant was arrested on 04.11.2020 in connection
with FIR registered u/s. 306 and s.34 of the IPC – It was alleged that
the appellant had not paid an amount due to the deceased for the
work which was carried out by him, as a result of which he was
under mental pressure and he committed suicide by hanging – In the
suicide note three individuals were held responsible including the
appellant – The appellant invoked jurisdiction of the High Court u/
Arts. 226/227 of the Constitution and s.482 of the Cr.P.C. and sought
quashing of FIR along with other reliefs – Pending the disposal of
the petition, the appellant filed an application and sought his release
from the judicial custody – The High Court held that since the
appellant was in judicial custody, it was open to him avail of the
remedy of bail u/s. 439 of the Cr.P.C. – The High Court declined
prima facie to consider the submission of the appellant that the
allegations in the FIR, read as they stand, do not disclose the
commission of an offence u/s. 306 of the IPC – The appellant filed
an appeal before the Supreme Court aggrieved by the denial of his
interim prayer for the grant of bail – On 11.11.2020, the Supreme
Court,
after reserving the judgment, ordered and directed the release
of all the three individuals including appellant on bail pending the
disposal of the proceedings before the High Court – Held: According
to the spouse of the deceased, her husband was over the previous
two years ‘having pressure as he did not receive the money of work
carried out by him’ – The deceased left behind a suicide note stating
that his “money is stuck and following owners of respective companies
are not paying our legitimate dues” – The consistent line of authority
of Supreme Court lays down that in order to bring a case within the
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purview of s.306 IPC, there must be a case of suicide and in the
commission of the said offence, the person who is said to have
abetted the commission of suicide must have played an active role
by an act of instigation or by doing certain act to facilitate the
commission of suicide – Therefore, the act of abetment by the person
charged with the said offence must be proved and established by
the prosecution – In the instant case, prima facie, on the application
of test laid down by the Supreme Court it cannot be said that the
appellant was guilty of having abetted suicide within the meaning
of s.306 of the IPC – The High Court in failing to notice the contents
of FIR and to make a prima facie evaluation abdicated its role,
functions and jurisdiction when seized of petition u/s. 482 of Cr.P.C.–
As a consequence of its failure to perform its function u/s. 482 Cr.P.C.,
the High Court disabled itself from exercising its jurisdiction u/Art.226
to consider appellant’s application for bail – While considering
application u/Art. 226, the High Court must be circumspect in
exercising its power on the basis of the facts of each case – However,
the High court should not foreclose itself from the exercise of the
power when a citizen has been arbitrarily deprived of their personal
liberty in an excess of state power – Therefore, the interim protection
granted to the accused on 11.11.2020 continue to remain in operation
pending the disposal of the proceedings before the High Court.
Constitution of India – Art.226 – Power to grant interim bail
– The appellant was arrested in connection with FIR registered u/s.
306 and s.34 of the IPC – Appellant filed petition u/Art.226/227 of
the Constitution and u/s.482 of the Cr.P.C. for quashing the FIR
and the arrest memo – Thereafter, the appellant filed application for
interim bail – The High Court declined to evaluate prima facie at the
interim stage in a petition for quashing the FIR as to whether an
arguable case has been made out – The High Court further declined
to allow the appellant’s prayer for interim bail and relegated him to
the remedy u/s.439 of Cr.P.C. – Aggrieved, the appellant filed an
appeal before the Supreme Court – It was submitted by the
respondents that procedural hierarchy of Courts in matters
concerning the grant of bail needs to be respected – Held: The
respondents are right in submitting that the procedural hierarchy of
courts in matters concerning the grant of bail needs to be respected
– However, there was a failure of the High Court to discharge its
adjudicatory function at two levels – first in declining to evaluate
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prima facie at the interim stage in a petition for quashing the FIR as
to whether an arguable case has been made out, and secondly, in
declining interim bail, as a consequence of its failure to render a
prima facie opinion on the first – The High Court did have the power
to protect the citizen by an interim order in a petition invoking Art.
226 – Where the High Court has failed to do so, Supreme Court
would be abdicating its role and functions as a constitutional court
if it refuses to interfere, despite the parameters for such interference
being met.
Words and Phrases – “Human Liberty and the role of the Courts” –
discussed.
Disposing the appeals, the Court
HELD: 1. The FIR recites that the spouse of the informant
had a company carrying on the business of architecture, interior
design and engineering consultancy. According to the informant,
her husband was over the previous two years “having pressure
as he did not receive the money of work carried out by him”. The
FIR recites that the deceased had called at the office of the
appellant and spoken to his accountant for the payment of money.
Apart from the above statements, it has been stated that the
deceased left behind a suicide note stating that his “money is
stuck and following owners of respective companies are not paying
our legitimate dues”. Prima facie, on the application of the test
which has been laid down by this Court in a consistent line of
authority, it
cannot be said that the appellant was guilty of having
abetted the suicide within the meaning of Section 306 of the IPC.
These observations, are prima facie at this stage since the High
Court is still to take up the petition for quashing. Clearly however,
the High Court in failing to notice the contents of the FIR and to
make a prima facie evaluation abdicated its role, functions and
jurisdiction when seized of a petition under Section 482 of the
CrPC. The High Court recited the legal position that the
jurisdiction to quash under Section 482 has to be exercised
sparingly. These words, however, are not meaningless
incantations, but have to be assessed with reference to the
contents of the particular FIR before the High Court. If the High
Court were to carry out a prima facie evaluation, it would have
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been impossible for it not to notice the disconnect between the
FIR and the provisions of Section 306 of the IPC. The failure of
the High Court to do so has led it to adopting a position where it
left the appellant to pursue his remedies for regular bail under
Section 439. The High Court was clearly in error in failing to
perform a duty which is entrusted to it while evaluating a petition
under Section 482 albeit at the interim stage. [Para 55][939-F-H;
940-A-D]
2. The petition before the High Court was instituted under
Article 226 of the Constitution and Section 482 of the CrPC. While
dealing with the petition under section 482 for quashing the FIR,
the High Court has not considered whether prima facie the
ingredients of the offence have been made out in the FIR. If the
High Court were to have carried out this exercise, it would have
been apparent that the ingredients of the offence have not prima
facie been established. As a consequence of its failure to perform
its function under Section 482, the High Court has disabled itself
from exercising its jurisdiction under Article 226 to consider the
appellant‘s application for bail. In considering such an application
under Article 226, the High Court must be circumspect in
exercising its powers on the basis of the facts of each case.
However, the High Court should not foreclose itself from the
exercise of the power when a citizen has been arbitrarily deprived
of their personal liberty in an excess of state
power. [Para 56]
[940-D-G]
3. While considering an application for the grant of bail under
Article 226 in a suitable case, the High Court must consider the
settled factors which emerge from the precedents of this Court.
These factors can be summarized as follows: (i) The nature of the
alleged offence, the nature of the accusation and the severity of
the punishment in the case of a conviction; (ii) Whether there
exists a reasonable apprehension of the accused tampering with
the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the accused at the
trial or the likelihood of the accused fleeing from justice; (iv) The
antecedents of and circumstances which are peculiar to the
accused; (v) Whether prima facie the ingredients of the offence
are made out, on the basis of the allegations as they stand, in the
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FIR; and (vi) The significant interests of the public or the State
and other similar considerations. [Para 57][940-D-H; 941-A-C]
4. These principles have evolved over a period of time and
emanate from the following (among other) decisions: Prahlad Singh
Bhati vs NCT, Delhi; Ram Govind Upadhyay vs Sudarshan Singh;
State of UP vs Amarmani Tripathi; Prasanta Kumar Sarkar vs Ashis
Chatterjee; Sanjay Chandra vs CBI; P. Chidambaram vs Central
Bureau of Investigation. [Para 58][941-D]
5. These principles are equally applicable to the exercise
of jurisdiction under Article 226 of the Constitution when the court
is called upon to secure the liberty of the accused. The High Court
must exercise its power with caution and circumspection, cognizant
of the fact that this jurisdiction is not a ready substitute for
recourse to the remedy of bail under Section 439 of the CrPC. In
the backdrop of these principles, it has become necessary to
scrutinize the contents of the FIR in the case at hand. In this
batch of cases, a prima facie evaluation of the FIR does not
establish the ingredients of the offence of abetment of suicide
under Section 306 of the IPC. The appellants are residents of
India and do not pose a flight risk during the investigation or the
trial. There is no apprehension of tampering of evidence or
witnesses. Taking these factors into consideration, the order dated
11 November 2020 envisaged the release of the appellants
on
bail. [Para 59][941-E-G; 942-A]
6. Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted legislation.
As such, the citizen is subject to the edicts of criminal law and
procedure. Section 482 recognizes the inherent power of the High
Court to make such orders as are necessary to give effect to the
provisions of the CrPC “or prevent abuse of the process of any
Court or otherwise to secure the ends of justice”. Decisions of
this court require the High Courts, in exercising the jurisdiction
entrusted to them under Section 482, to act with circumspection.
In emphasising that the High Court must exercise this power
with a sense of restraint, the decisions of this Court are founded
on the basic principle that the due enforcement of criminal law
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should not be obstructed by the accused taking recourse to
artifices and strategies. The public interest in ensuring the due
investigation of crime is protected by ensuring that the inherent
power of the High Court is exercised with caution. That indeed is
one - and a significant - end of the spectrum. The other end of the
spectrum is equally important: the recognition by Section 482 of
the power inhering in the High Court to prevent the abuse of
process or to secure the ends of justice is a valuable safeguard
for protecting liberty. The Code of Criminal Procedure of 1898
was enacted by a legislature which was not subject to constitutional
rights and limitations; yet it recognized the inherent power in
Section 561A. Post Independence, the recognition by Parliament
of the inherent power of the High Court must be construed as an
aid to preserve the constitutional value of liberty. The writ of liberty
runs through the fabric of the Constitution. The need to ensure
the fair investigation of crime is undoubtedly important in itself,
because it protects at one level the rights of the victim and, at a
more fundamental level, the societal interest in ensuring that
crime is investigated and dealt with in accordance with law. On
the other hand, the misuse of the criminal law is a matter of which
the High Court and the lower Courts in this country must be alive.
In the present case, the High Court could not but have been
cognizant of the specific ground which was
raised before it by the
appellant that he was being made a target as a part of a series of
occurrences which have been taking place since April 2020. The
specific case of the appellant is that he has been targeted because
his opinions on his television channel are unpalatable to authority.
Whether the appellant has established a case for quashing the
FIR is something on which the High Court will take a final view
when the proceedings are listed before it but we are clearly of the
view that in failing to make even a prima facie evaluation of the
FIR, the High Court abdicated its constitutional duty and function
as a protector of liberty. Courts must be alive to the need to
safeguard the public interest in ensuring that the due enforcement
of criminal law is not obstructed. The fair investigation of crime is
an aid to it. Equally it is the duty of courts across the spectrum –
the district judiciary, the High Courts and the Supreme Court –
to ensure that the criminal law does not become a weapon for the
selective harassment of citizens. Courts should be alive to both
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ends of the spectrum – the need to ensure the proper enforcement
of criminal law on the one hand and the need, on the other, of
ensuring that the law does not become a ruse for targeted
harassment. Liberty across human eras is as tenuous as tenuous
can be. Liberty survives by the vigilance of her citizens, on the
cacophony of the media and in the dusty corridors of courts alive
to the rule of (and not by) law. Yet, much too often, liberty is a
casualty when one of these components is found wanting. [Para
60][942-B-H; 943-A-D]
7.  The respondents are undoubtedly right in submitting
that the procedural hierarchy of courts in matters concerning the
grant of bail needs to be respected. However, there was a failure
of the High Court to discharge its adjudicatory function at two
levels – first in declining to evaluate prima facie at the interim
stage in a petition for quashing the FIR as to whether an arguable
case has been made out, and secondly, in declining interim bail,
as a consequence of its failure to render a prima facie opinion on
the first. The High Court did have the power to protect the citizen
by an interim order in a petition invoking Article 226. Where the
High Court has failed to do so, this Court would be abdicating its
role and functions as a constitutional court if it refuses to interfere,
despite the parameters for such interference being met. The doors
of this Court cannot be closed to a citizen who is
able to establish
prima facie that the instrumentality of the State is being weaponized
for using the force of criminal law. Our courts must ensure that
they continue to remain the first line of defense against the
deprivation of the liberty of citizens. Deprivation of liberty even
for a single day is one day too many. [Para 61][943-E-H]
Amalendu Pal vs State of West Bengal (2010) 1 SCC
707 : [2009] 15 SCR 836; S S Chheena vs Vijay Kumar
Mahajan (2010) 12 SCC 190 : [2010] 9  SCR 1111;
Madan Mohan Singh vs State of Gujarat (2010) 8 SCC
629 : [2010] 10 SCR 351; M Arjunan vs State
(represented by its Inspector of Police) (2019) 3 SCC
315; Ude Singh and Ors. vs State of Haryana [2019] 9
SCR 703; Rajesh vs State of Haryana (2020) 15
 SCC 359; Gurcharan Singh vs State of Punjab (2020)
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10  SCC 200; Narayan Malhari Thorat vs Vinayak
Deorao Bhagat (2019) 13 SCC 598 : [2018] 14
SCR 232; Romila Thapar vs Union of India (2018) 10
SCC 753 : [2018]  11 SCR 951 – relied on.
State of Telangana vs Habib Abdullah Jeelani (2017) 2
SCC 779 : [2017] 1 SCR 141; Praveen Pradhan vs State
of Uttaranchal and Ors. (2012) 9 SCC 734 : [2012] 8
SCR 1129; Vinubhai Haribhai Malaviya vs State of
Gujarat 2019 SCC OnLine SC 1346; Madan Mohan
Singh vs State of Gujarat (2010) 8 SCC 628 : [2010]
10  SCR 351; Sunil Bharti Mittal vs Central Bureau of
Investigation (2015) 4 SCC 609 : [2015] 1 SCR 377; 
Common Cause vs Union of India (2018) 5 SCC  1 :
[2018] 6 SCR 1; Vineet Narain and Ors. vs Union of
India and  Ors.(1998) 1 SCC 226: [1997]  6 Suppl.
SCR  595; Hema Mishra vs State of UP. (2014) 4 SCC
453: [2014] 1 SCR 465; State of Haryana vs Bhajan
Lal 1992 Suppl. 1 SCC 335 : [1990] 3 Suppl.  SCR 
259; Kamal Shivaji Pokarnekar  vs  State of
Maharashtra (2019) 14 SCC 350; State of West Bengal
vs Orilal Jaiswa1 (1994) 1 SCC : [1993] 2 Suppl.
 SCR 461; Randhir Singh vs State of Punjab (2004) 13
SCC 129 : [2004] 5 Suppl.  SCR 351; Kishori Lal vs
State of MP (2007) 10 SCC 797 : [2007] 7
SCR 1051; Kishangiri Mangalgiri Goswami vs State of
Gujarat (2009) 4 SCC 52 : [2009] 1 SCR 672; Vaijnath
Kondiba Khandke vs State of Maharashtra and Ors.
(2018) 7 SCC 781; Prahlad Singh Bhati vs NCT, Delhi
(2001) 4 SCC 280:[2001]  2 SCR  684; Ram Govind
Upadhyay vs Sudarshan Singh (2002) 3
SCC 598 :
[2002] 2 SCR  526; State of UP vs Amarmani Tripathi
(2005) 8 SCC 21 : [ 2005] 3 Suppl. SCR 454; Prasanta
Kumar Sarkar vs Ashis Chatterjee (2010) 14 SCC
496:[2010] 12  SCR 1165; Sanjay Chandra  vs  CBI
(2012) 1 SCC 40: [2011] 13 SCR 309; P. Chidambaram
vs Central Bureau of Investigation (2020) 13  SCC 337;
State of Rajasthan, Jaipur vs Balchand (1977) 4 SCC
308:[1978] 1 SCR  535 – referred to.
ARNAB MANORANJAN GOSWAMI v.
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Case Law Reference
[2017] 1 SCR 141
referred to
Para 3
[2012] 8 SCR 1129
referred to
Para 25(iv)
[2010] 10  SCR 351
relied on
Para 31
[2015] 1 SCR 377 
referred to
Para 31
[2018] 6 SCR 1
referred to
Para 31
[1997]  6 Suppl.  SCR  595
referred to
Para 31
[2014] 1 SCR 465
referred to
Para 43
[1990] 3 Suppl.  SCR  259
referred to
Para 44
(2019) 14 SCC 350
relied on
Para 44
[1993] 2 Suppl.  SCR 461
referred to
Para 47
[2004] 5 Suppl.  SCR 351
referred to
Para 47
[2007] 7 SCR 1051 
referred to
Para 47
[2009] 1 SCR 672
referred to
Para 47
[2009] 15 SCR 836  
relied on
Para 47
[2010] 9  SCR 1111 
relied on
Para 47
[2010] 10 SCR 351
referred to
Para 48
(2019) 3 SCC 315
referred to
Para 50
[2019] 9 SCR 703
relied on
Para 51
(2020) 15 SCC 359
relied on
Para 51
(2020) 10  SCC 200
relied on
Para 51
(2018) 7 SCC 781
referred to
Para 52
[2018] 14 SCR 232
relied on
Para 54
[2001]  2 SCR  684 
referred to
Para 58
[2002] 2 SCR  526 
referred to
Para 58
[2005]  3  Suppl.  SCR 454  
referred to
Para 58
[2010] 12  SCR 1165 
referred to
Para 58
[2011] 13 SCR 309 
referred to
Para 58
(2020) 13  SCC 337
referred to
Para 58
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[2018]  11 SCR 951
relied on
Para 62
[1978]  1   SCR  535
referred to
Para 63
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 742 of
2020.
From the Judgment and Order dated 09.11.2020 of the High Court
of Bombay in the Interim Application 4278 of 2020 in Criminal Writ
Petition (St.) No. 4132 of 2020.
With
Criminal Appeal Nos. 743 & 744 of 2020.
Harish Salve, Siddharth Bhatnagar, Abaad Ponda, Gopal
Sankaranarayanan, Mukul Rohtagi, Kapil Sibal, Amit Desai, Devdatta
Kamat, C. U. Singh, Sr. Advs., Ms. Malvika Trivedi, Saket Shukla, Vasanth
Rajasekaran, Mrinal Ojha, Debarshi Dutta, Rajat Pradhan, Biswadeep
Chakravorty, Ms. Madhavi Doshi, Sanjeev Sambasivan, Siddhant Kumar,
Ms. Kajri Roy, Ms. Chetna N. Rai, Ms. Sheena Iype, Nirnimesh Dube,
Ms. Rashi Bansal, Ms. Esha Bhadoria, Sameer Singh, Vijay Agarwal,
Mahesh Agarwal, Gaurav Kejriwal, Ishwar Nankni, Aditya Kanodia,
Samir Ali Khan, Mudit Jain, Rahul Agarwal, Nishant Rao, Ankit Kohli,
Rahul Chitnis, Sachin Patil, Dipak Thakre, Hemant Shah, Geo Joseph, F.
I. Choudhury, Noor Ul Islam, Vaibhav Karnik, Advs. for the appearing
parties.
The Judgement of the Court was delievered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into sections to facilitate analysis.
They are:
A
The appeal
B
The parties, the FIR and  A‘ Summary
C
Previous proceedings against the appellant
D
Re-opening of investigation and arrest of the appellant
E
Submissions of Counsel
F
Criminal Appeal No. 743 of 2020 (Arising out of
SLP (Crl)
No. 5599 of 2020)
G
Criminal Appeal No. 744 of 2020 (Arising out of SLP (Crl)
No. 5600 of 2020)
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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Jurisdiction of the High Court under Article 226 and Section
482 CrPC
I
Prima Facie evaluation of the FIR and the grant of bail
J
Human liberty and the role of courts
K
Conclusion
A. The appeal
1. While invoking the jurisdiction of the High Court of Judicature
at Bombay under Articles 226 and 227 of the Constitution of India and
Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”), the
appellant sought three substantive reliefs:
(i)
A writ of Habeas Corpus, claiming that he had been illegally
arrested and wrongfully detained by the Station House Officer
(“SHO”) at Alibaug Police Station in the district of Raigad in
Maharashtra in relation to a First Information Report1 (“FIR”)
registered on 5 May 2018 under Sections 306 and 34 of the
Indian Penal Code, 1860 (“IPC”) in spite of an earlier closure
report which was accepted by the Magistrate;
(ii)
The quashing of the above-mentioned FIR; and
(iii)
The quashing of the arrest memo on the basis of which the
appellant had been arrested.
These three reliefs2 are reflected in prayers (a), (b) and (c) of the
petition before the High Court.
1
CR No. 0059 of 2018
2 (a)       Issue a writ of habeas corpus and/or any other similar writ, order and direction
of like nature, directing the Respondents to produce the Petitioner who has been
illegally arrested and wrongfully detained by the Respondent No. 2 in relation to
FIR, being C.R. No. 0059 of 2018 dated 5 May 2018,
registered at Alibaug Police
Station, Raigad, under Sections 306 and 34 of the Indian Penal Code, 1860,
despite a closure report being filed;
(b)
Issue a writ of mandamus and/or any other similar writ, order and direction of
like nature, quashing the FIR, being C.R. No. 0059 of 2018, dated 5 May 2018,
registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of the
Indian Penal Code, 1860;
(c)
Issue a writ of certiorari and/or any other similar writ, order and direction of like
nature, quashing and/or setting-aside the arrest memo, if any, on the basis of
which the Respondents have wrongfully and illegally arrested the Petitioner;
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2. Pending the disposal of the petition, by an interim application in
the proceedings3, the appellant sought his release from custody and a
stay of all further proceedings including the investigation in pursuance of
the FIR.
3. A Division Bench of the High Court, by its order dated 9
November 2020, noted that prayer (a) by which a writ of habeas corpus
was sought was not pressed. The High Court posted the hearing of the
petition for considering the prayer for quashing of the FIR on 10 December
2020. It declined to accede to the prayer for the grant of bail, placing
reliance on a decision of this Court in State of Telangana vs Habib
Abdullah Jeelani4 (“Habib Jeelani”). The High Court was of the view
that the prayers for interim relief proceeded on the premise that the
appellant had been illegally detained and since he was in judicial custody,
it would not entertain the request for bail or for stay of the investigation
in the exercise of its extra-ordinary jurisdiction. The High Court held that
since the appellant was in judicial custody, it was open to him to avail of
the remedy of bail under Section 439 of the CrPC. The High Court declined
prima facie to consider the submission of the appellant that the allegations
in the FIR, read as they stand, do not disclose the commission of an
offence under Section 306 of the IPC. That is how the case has come to
this Court. The appellant is aggrieved by the denial of his interim prayer
for the grant of bail.
B. The
parties, the FIR and ‘A’ Summary
4. The appellant is the Editor-in-Chief of an English television news
channel, Republic TV. He is also the Managing Director of ARG Outlier
Media Asianet News Private Limited which owns and operates a Hindi
television news channel by the name of R Bharat. The appellant anchors
shows on both channels.
5. The appellant was arrested on 4 November 2020 in connection
3 (a)
Pending final hearing and disposal of the captioned writ petition, this Hon’ble
Court be pleased to grant bail to the Petitioner in FIR No. 59 of 2018 and direct
the Respondents and/or each of them to immediately release the Petitioner from
illegal detention and wrongful custody and/or arrest by the Respondents in view
of detailed submissions made herein above, to meet the ends of justice.
(b)
Pending the final hearing and disposal of the captioned writ petition, this Hon’ble
Court be pleased to stay all further proceedings, including the investigation in
FIR No. 59 of 2018, with respect to the Petitioner.
4
(2017) 2 SCC 779
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with FIR 59 of 2018 which was registered at Alibaug Police Station
under Sections 306 and 34 of the IPC.
6. The genesis of the FIR can be traced back to December 2016,
when a company by the name of ARG Outlier Media Private Limited
(“ARG”) awarded a contract for civil and interior work to another
company, Concorde Design Private Limited (“CDPL”) which was owned
substantially by Anvay Naik (the “deceased”).
7. The FIR was registered on 5 May 2018 on the complaint of
Akshyata Anvay Naik (the “informant”), the spouse of the deceased
who is alleged to have committed suicide. The contents of the FIR read
thus:
“12. First Information contents:
Facts : I Smt. Akshata Anvay Naik Age 48 yeas, occupation
housewife, residing at 901, Rishabh Tower, Senapati Bapat Marg,
Elphistone West, Mumbai-25 personally remain present and state
in writing that my mobile No. 8169947073, I am residing at the
abovementioned address with my deceased Anvay Madhukar
Naik, daughter Adnya Naik together. My husband is having
company owned under name and dstype as Concorde Design and
we were having our livelihood by doing business of architecture
interior designing and engineering consultancy. My husband Anvay
Madhukar Naik is having his native place at Village Kavir, Tai.
Alibaug and at the said place my mother in law Kumud Madhukar
Naik is residing . therefore my husband used to visit in between to
my mother in law at Village Kavir Tai. Alibag . As
also my husband
used to bring my mother in law Kumud Naik in between with us at
Mumbai. My husband for last two years was having pressure as
he did not received the money of work carried out by him and he
continuously used to inform me and therefore I also called in the
office of Amav Gosmani and asked his accountant for payment of
money of work done by us. As also contacted to other businessman
also and informed that my husband is in great difficulty and as the
money is not received he is under great mental pressure. Yesterday
on 04.05.2018 at 3.45 pm in afternoon my husband Anvay
Madhukar Naik and my mother in law Kumud Madhukar Naik
left from our house at Mumbai and came at Alibag Kavir. At evening
7.30 I called on the mobile No. 9763437648 of my mother in law
and when enquired as to whether they have reached at our farm
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house at Kavir Ali bag or otherwise when my mother in law
informed me that she and my husband reached and as care taker
aaji gone out she will required to carry out all the work in the
house. Today on 05.05.2018 at morning 9.30 am when I and my
daughter Adnya were at our house at Mumbai Shri Aruni Patil
residing at Dadar Hindu Colony, Mumbai called my daughter Adnya
on her mobile that my mother in law Kumud Naik expired.
Therefore I and my daughter Adnya sister Mrs. Manjusha Durgesh
Vaingankar, and her daughter Shreya Vaingankar started coming
to Alibag through our own vehicle. After we reached at Wadkhal
I called on mobile of friend of my husband Shri Akshit Lakhani
and enquired about my husband when he informed that my husband
Anvay Madhukar Naik has also committed suicide . When we
reached at our farm house at Kavir at around 2.15 pm in afternoon
there was huge crowd of public and police were gathered.
Therefore when we went inside and saw that my mother in law
Kumud Naik was lying on bed near dining room. Thereafter from
stair case when we went on upper floor saw that my husband
Anvay Madhukar Naik was lying and one thread was hanged on
iron pipe of house. Thereafter police enquired with us and informed
us about the said incident. Thereafter only informed that they were
taking my husband Anvay Madhukar Naik and mother in law
Kumud Madhukar Naik to Civil Hospital Alibag. When we were
present in the said house police shown us note written by my
husband
Anvay Madhukar Naik in his own handwriting in English(
suicide note). The handwriting in the said note is his handwriting
and the signature on it is also of his only and l identify the same. In
the said note he has written in English as 3) Suicide Note, 4) we
are committing suicide due to following 5) our (Concorde designs
Pvt Ltd) 6) We both directors I) Mr. Anvay M. Naik 2) Kumud
M. Naik, 7) Money is stuck and following owners of respected
companies are not paying our legitimate dues 8) Mr. Amab
Goswami ARG Outlier of Republic TV, not paid 83 lacs for
Bombay Dyeing Studio project, 9) Feroz Shaikh Icaswt X /
Skimedia not paid our 400 lacs in Laxmi, 3rd and 4th floor idea
Square project in Andheri 10) Mr. Niteish Sarda owner of smart
works Magarpattaq and Baner Project (55 Lacs pending) 11) kindly
collect money from them and held them responsible for our death
and pay to creditors 12) I and my mother are directors in Concorde
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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India company and following persons have till now not paid me
money of work done by me. In which it is written as Arnab Goswami
ARV Outlife Of Republic TV having Rs.83 Lac of work done, 2)
Firoz Khan having 4 crores of work done, 3) Nitesh Sarda 55 lacs
of work done should be deposited and should be held responsible
for my death and getting the same deposited and pay the dues of
public. With regard to the contents written in the said note my
husband Anvay Madhukar Naik had continuously informed me
for last one or two years. While he used to tell me he was under
immense pressure. Therefore I am having lawful complaint
against. Arnab Goswami, 2. Firoz Khan, 3. Nilesh Sarda the persons
whose names written in said suicide note by my husband Anvay
Madhukar Naik that the abovementioned amount was due from
them and even after continuously demanding the said amount have
not paid the said amount and therefore my husband was under
great pressure therefore my husband Anvay Naik Age 53 years
and my mother in law Kumud Madhukar Naik died and the
information of such contents was registered and PI Shri Warade
is investigating the said offence.
The FIR records thus:
(i)
The appellant (who owns the company ARG) had not paid
an amount of Rs. 83 lacs for the Bombay Dyeing Studio
project. In addition, there was an outstanding amount of Rs.
4 crores from Feroz Shaikh and Rs. 55 lacs from Nitesh
Sarda (who are the appellants in the
connected Criminal
Appeals);
(ii)
The spouse of the informant had not received payment for
the work which was carried out by him, as a result of which
he was under mental pressure and that he committed suicide
by hanging on 5 May 2018;
(iii)
There  is  a   suicide  note‘  holding  the  above  three  individuals
responsible; and
(iv)
The informant was informed on 5 May 2018, when she and
her daughter were at their residence at Mumbai, that her
mother-in-law Kumud Naik had died at their Alibaug
residence. On the way to Alibaug, she was informed that her
husband had committed suicide. On reaching the house at
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Alibaug, she found the body of her mother-in-law lying on a
bed and that her spouse had committed suicide by hanging.
8. On 6 May 2018, officers from the Alibaug Police Station visited
ARG’s office in Mumbai and served three notices under Section 91 of
the CrPC. On 7 and 8 May 2018, two representatives of ARG visited
Alibaug Police Station where they claim to have handed over the
information which was sought by the police in their notices under Section
91. On 22 May 2018, the appellant submitted a representation to the
notice under Section 91 following which on 30 May 2018 and 28 June
2018, the statements of the Chief Financial Officer and Company Secretary
of ARG were recorded.
9. On 16 April 2019, the SHO at Alibaug Police Station filed a
report in the Court of the Chief Judicial Magistrate (“CJM”) for an  ‘A’
summary. The CJM passed an order accepting the report and granted an
‘A’ summary. The meaning and import of an  A‘ summary is reflected in
Para 219 (3) of the Bombay Police Manual, 1959. An  ‘A’ Summary
indicates a case where an offence has been committed but it is undetected,
in that there is no clue about the culprits or the property, or where the
accused is known but there is no evidence to justify their being sent up to
the Magistrate for trial. Para 219 (3) of the Bombay Police Manual reads
thus:
“RULE 219 (3) OF BOMBAY POLICE MANUAL
(3) The final report should be written up carefully by the officers
incharge of the Police Station personally
and should be
accompanied by all the case papers numbered and indexed
methodically. If the accused has been released on bail, the
Magistrate should be requested to cancel the bail bond. He should
also be requested to pass orders regarding the disposal of property
attached, unless any of the articles, e.g., blood stained clothes, are
required for further use in true but undetected cases. A request
should also be made to the Magistrate to classify the case and to
issue an appropriate summary of his order, viz:-
“A” True. undetected (where there is no clue whatsoever about
the culprits or property or where the accused in known but there
is no evidence to justify his being sent up to the Magistrate (for
trial).
“B” Maliciously false.
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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“C” Neither true nor false, e.g., due to mistake to fact or being of
a civil nature.
“Non-cognizable” Police investigation reveals commission of only
non-cognizable offence.”
10. Following the ‘A’ summary, there was an exchange of
correspondence between ARG and the informant. ARG by their letter
dated 11 June 2019, addressed to CDPL, the informant and her daughter,
indicated that several meetings had been held in the past between them
during the course of which ARG had sought indemnities from CDPL
against any future claims. In its letter, ARG stated that it would be
transferring a sum of Rs. 39.01 lacs into CDPL‘s last known bank account
against an indemnity for future claims by the creditors or lenders of CDPL.
In response, on 15 June 2019, the informant addressed a communication
to ARG stating that out of a total billed amount of Rs. 6.45 crores, an
amount of Rs. 5.75 crores had been received from ARG, and after
adjustment of an amount of Rs. 70.39 lacs towards deductions made
from the bill, an amount of Rs. 88.02 lacs was due and payable. On 6
November 2019, ARG addressed another letter to the informant recording
the closure of the police investigation and reiterating its readiness to pay
an amount of Rs.39.01 lacs subject to due authorisation. The matter
appears to have rested there until a flurry of developments took place in
the month of April 2020.
C. Previous proceedings against the appellant
11. During the
course of the present proceedings, the appellant
has adverted to proceedings initiated against him previously by the State
of Maharashtra, in order to support his case that the arrest is vitiated by
malice in fact.
12. On 16 April 2020, a broadcast took place on Republic TV,
followed by a broadcast on Republic Bharat on 21 April 2020 in relation
to an incident which took place in Gadchinchle village of Palghar district
in Maharashtra. During the course of this incident on 16 April 2020,
three persons, including two Sadhus, were brutally killed by a mob,
allegedly in the presence of the police and forest guard personnel.
According to the appellant, on his news show titled “Poochta hai Bharat”
on 21 April 2020, he had raised issues in relation to the allegedly tardy
investigation of the incident by the police.
13. As this Court noticed in a judgment dated 19 May 2020, the
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broadcasts led to the lodging of multiple FIRs and criminal complaints
against the appellant in the States of Maharashtra, Chhattisgarh, Rajasthan,
Madhya Pradesh, Telangana and Jharkhand as well as in the Union
Territories of Jammu and Kashmir. The content of the FIRs was similar,
almost identical. In the State of Maharashtra, an FIR was lodged at
Police Station Sadar, District Nagpur City, details of which were as follows:
“Maharashtra
FIR No. 238 of 2020, dated 22 April 2020, registered at Police
Station Sadar, District Nagpur City, Maharashtra, under Sections
153, 153-A, 153-B,295-A, 298,  500, 504(2), 506, 120-B and 117
of the Indian Penal Code 1860.”
Apart from the above FIR, fourteen other FIRs and complaints
were lodged against the appellant in relation to his broadcasts.
14. The appellant moved this Court in proceedings under Article
32 of the Constitution5 challenging the registration of these FIRs. By an
interim order dated 24 April 2020, the FIR which had been lodged at
Police Station Sadar, District Nagpur City was transferred to NM Joshi
Marg Police Station, Mumbai and was renumbered as FIR 164 of 2020.
Another FIR, FIR 137 of 2020, was registered against the appellant on 2
May 2020 at the Pydhonie Police Station, Mumbai. FIR 137 of 2020 was
filed against the appellant due to a telecast which took place on 29 April
2020 on the appellant‘s new channels, in which the appellant referred to
a gathering of migrant workers at the Bandra Railway
station during the
Covid-19 pandemic, and attempted to connect a place of religious worship
with this gathering. The appellant filed another petition under Article 32
of the Constitution6, challenging the registration of FIR 137 of 2020.
15. By its judgment dated 19 May 2020, this Court quashed all the
FIRs, except for the FIR which was transferred from Nagpur to Mumbai,
on the ground that successive FIRs/complaints in respect of the same
cause could not be maintained. The court granted liberty to the appellant
to pursue such remedies as were available in law before the competent
forum for quashing FIR 164 of 2020.
16. By an order dated 30 June 2020, a Division Bench of the
Bombay High Court, while entertaining a petition under Articles 226/227
of the Constitution and Section 482 of the CrPC, suspended all further
5 Writ Petition (Crl.) No. 130 of 2020
6 Writ Petition (Crl.) Diary No. 1189 of 2020
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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proceedings in FIR 164 of 2020 before the NM Joshi Marg Police Station
and FIR 137 of 2020 before the Pydhonie Police Station and confirmed
its interim order dated 6 June 2020 restraining the State from taking
coercive steps against the appellant in relation to the two FIRs, pending
the disposal of the petition.
17. Aside from this incident, the appellant has relied on certain
other developments which have taken place thereafter. These are:
(i)
The arrest on 9 September 2020 by the Maharashtra Police
of two employees of the appellant‘s news channel alleged to
be pursuing an investigative lead in Raigad, Maharashtra and
the registration of  FIR 142 of 2020 at Khalapur Police Station,
Raigad under Sections 452, 448, 323, 504 and 506 read with
Section 34 of the IPC;
(ii)
The issuance of a letter by the “Shiv Cable Sena” to cable
operators across Maharashtra asking them to ban the telecast
of the appellant’s news channel;
(iii)
An order of the Bombay High Court dated 11 September
2020 in a Writ Petition under Article 226 holding that the
letter of the Shiv Cable Sena did not have the force of law
and the appellant would be at liberty to pursue the remedies
available in law;
(iv)
On 16 September 2020, a notice to show cause was issued
to the appellant for breach of privilege of the legislative
assembly, which is the subject of proceedings instituted in
this court;
(v)
A notice to show cause was issued under Section 108(1)
of
the CrPC to the appellant by the Special Executive Magistrate,
in spite of the order of the Bombay High Court;
(vi)
The registration of FIR 843 of 2020 on 6 October 2020 at
Kandivali Police Station (later transferred to the Crime
Intelligence Unit, Mumbai) on a complaint by an employee
of Hansa Research Group Private Limited in relation to the
‘TRP scam’;
(vii) A press conference by the Commissioner of Police Mumbai
on 8 October 2020 mentioning the name of the appellant as
being allegedly involved in the ‘TRP scam’;
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(viii) The appellant instituted a Writ Petition under Article 32 of
the Constitution7 before this Court seeking reliefs in respect
of FIR 843 of 2020. By an order dated 15 October 2020, the
Writ Petition was dismissed as withdrawn with liberty to the
appellant to approach the Bombay High Court; and
(ix)
The appellant filed Writ Petition (Crl.) Stamp No. 3143 of
2020 before the Bombay High Court, in which on 19 October
2020 an order was passed calling upon the Investigating
Officer to submit the investigation paper in a sealed envelope
on 4 November 2020. The High Court noted that the appellant
had as on date not been arrayed as an accused in the FIR
and if the investigating officer proposed to make an enquiry,
a summons shall be issued to him. The appellant agreed to
cooperate in the enquiry.
D. Re-opening of investigation and arrest of the appellant
18. On 26 May 2020, the Home Department of the State of
Maharashtra addressed a communication to Deputy Inspector General
of Police stating that the FIR registered as Crime No. 59 of 2020, at
Alibaug Police Station under Sections 306/34 of the IPC, was being
transferred to the crime investigation department “for the purpose of
reinvestigation”. The letter, insofar as is material, reads thus:
“In respect of the above mentioned subject, you are hereby informed
that crime no. 59/2020 registered at Alibaug Police Station under
Section 306/34 and Crime no. 114 of 2018 registered at Alibaug
Police Station under
Section 302 are being transferred to Crime
Investigation Department for he purposes of reinvestigation. Hence,
you are requested to undertake the necessary steps for handing
over the case for reinvestigation and report in respect of
investigation already been made be submitted to the Government.”
19. On 15 October 2020, the Local Crime Investigation Branch,
Raigad addressed a communication to the CJM, Alibaug recording the
commencement of further investigation under Section 173(8) of the CrPC
in respect of Crime No. 59 of 2018 under Section 306 read with Section
34 of the IPC.
20. On 4 November 2020, the appellant was arrested at about
7:45 am in connection with FIR 59 of 2018 dated 5 May 2018. At 2:37
7 Writ Petition (Crl.) 312 of 2020
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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pm, the appellant filed a Writ Petition before the Bombay High Court,
invoking the provisions of Articles 226/227 of the Constitution and Section
482 of the CrPC.
21. After the appellant‘s arrest, a remand application was filed
before the CJM, Raigad. By an order dated 4 November 2020, the CJM
declined to grant police custody. Noting that there had been an  A‘
summary previously, the CJM while rejecting the plea of police custody,
remanded the appellant to judicial custody till 18 November 2020. The
State has challenged the order of the CJM declining police custody in a
revision before the Additional Sessions Judge, Raigad.
22. The writ petition filed by the appellant before the Bombay
High Court was heard on 5, 6 and 7 November 2020. On 7 November
2020, the High Court reserved orders and granted liberty to the appellant
to file an application for regular bail under Section 439 of the CrPC with
a direction that it should be heard expeditiously within four days of the
date of filing. Following the above direction, the appellant moved the
Sessions Court, Raigad for bail under Section 439 of the CrPC. By its
impugned judgment and order dated 9 November 2020, the High Court
posted the hearing of the petition filed by the appellant in regard to the
prayer of quashing of the FIR on 10 December 2020. While doing so, the
High Court denied bail to the appellant on the ground that no case has
been made out for the exercise of
the extra-ordinary jurisdiction and that
the appellant had an alternate and efficacious remedy under Section 439
of the CrPC.
E. Submissions of counsel
23. Assailing the order of the High Court denying bail to the
appellant, Mr Harish N Salve, learned Senior Counsel, submitted that:
(i)
The arrest of the appellant is rooted in malice in fact, which
is evident from the manner in which the appellant as the
Editor-in-Chief of Republic TV and R Bharat has been
targeted for his news broadcasts criticizing the Maharashtra
government and the Maharashtra police;
(ii)
Following the acceptance of the police report and the issuance
of an ‘A’ summary on 16 April 2019, the reinvestigation which
has been ordered at the behest of the Home Minister of the
State of Maharashtra is ultra vires. Further, in the absence
of the specific permission of the CJM, it was not open to the
State to conduct a reinvestigation; and
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(iii)
The allegations contained in the FIR, read as they stand, do
not establish an offence under Section 306 read with Section
34 of the IPC. To constitute the offence of abetment there
must exist:
i.
A direct or indirect incitement to the commission of a
crime;
ii.
An active role of the accused in instigating or doing an
act facilitating the commission of the crime; and
iii. The existence of a proximate relationship in time.
In the present case, it was submitted that even if the allegations in
the FIR are accepted as they stand, no case of abetment is established.
It has been submitted that the company of the appellant (ARG) had
entrusted a contract for interior work to the deceased‘s company (CDPL).
Further, it is not in dispute that while an amount of Rs 5.45 crores has
been paid, there was a commercial dispute pending in regard to the
remaining payment between the two companies. The contents of the
FIR also reveal that the deceased was suffering from mental pressure.
Furthermore, there is absolutely no allegation that the appellant had either
instigated or committed any act to facilitate the commission of the crime.
24. Mr Salve further submitted that the judgment of this Court in
Habib Jeelani (supra) has been wrongly interpreted by the High Court.
It has been submitted that it was in pursuance of the liberty that was
granted by the High Court, that an application for bail under Section 439
of the CrPC was filed. However, even on 9 November 2020,
the Public
Prosecutor has filed a note before the Sessions Judge that the revision
application filed by the State against the order of the CJM should be
heard first and it is only thereafter that the application for bail should be
taken up. On the basis of the above submissions, it has been urged that
the appellant has been made a target of the vendetta of the State
government, which emerges from the successive events adverted to
above which have taken place since April 2020. Hence, it has been urged
that there is absolutely no ground to continue the arrest of the appellant
and absent any reasonable basis for depriving him of his liberty, an order
for the grant of bail should have been passed by the High Court. Mr.
Salve finally submitted that the interest in preserving the procedural
hierarchy of courts must give way to the need to protect the appellant‘s
personal liberty given the well settled legal position that the default rule is
‘bail, not jail’.
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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25. Opposing the above submissions, Mr Amit Desai, learned Senior
Counsel appearing on behalf of the second respondent submits that:
(i)
The High Court has advisably not enquired into whether:
i.
The investigation is tainted by mala fides; and
ii. The contents of the FIR as they stand make out an
offence within the meaning of Section 306 read with
Section 34 of the IPC;
(ii)
The High Court declined to express a prima facie view on
the issue of mala fides since an opportunity was being granted
to the State to file its counter. Similarly, the issue as to whether
the FIR is liable to be quashed would be taken up at the final
hearing on 10 December 2020 and hence the High Court has
correctly refrained from expressing a prima facie view;
(iii)
Between 15 October 2020 and 4 November 2020, a further
investigation has been carried out and statements have been
recorded under Section 164 of the CrPC;
(iv)
In accordance with this Court’s judgment in the case of
Praveen Pradhan vs State of Uttaranchal and Ors.8
(“Praveen Pradhan”), instigation to commit suicide has to
be gathered from the circumstances of a particular case.
Hence, while there may not be direct evidence in regard to
instigation which may have direct nexus to suicide, an
inference has to be drawn from the circumstances to
determine whether they were of a nature which created a
situation in which a person felt totally frustrated and ended
up committing suicide.
Further, while making a determination
as to the quashing of proceedings, the Court has to form only
a tentative opinion and not a firm view;
(v)
A hierarchy of courts is provided for to consider an application
for bail under Section 439 of the CrPC. In the present case,
there is no valid basis to by-pass that hierarchy in order to
grant relief to the appellant;
(vi)
An application for bail was initially filed on behalf of the
appellant which was withdrawn after the order for judicial
8 (2012) 9 SCC 734
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custody was passed. An application for bail has been filed
after the High Court while reserving judgment granted liberty
to do so with a direction for its disposal within four days.
Hence, it is appropriate that the appellant is relegated to pursue
the remedies under Section 439;
(vii) Prayer (a) in the Writ Petition for the grant of a writ of Habeas
Corpus was not maintainable in view of the fact that the
appellant had been arrested and committed to judicial custody,
and the interim application for his release on bail was only in
the context of the prayer for Habeas Corpus;
(viii) During the course of the hearing of the proceedings before
the Bombay High Court, the Division Bench indicated that if
the appellant were to file an application under Section 439,
appropriate administrative directions of the Chief Justice could
be obtained for listing it before the Division Bench since
applications for bail are placed for hearing before a Single
Judge (while the petition was before a Division Bench) and
the appellant had only filed an interim application in the pending
Writ Petition for being released on bail;
(ix)
Both the issue of whether the appellant has made out a case
for quashing the FIR and whether a reinvestigation could
have been ordered at the Home Department of the State
would be considered by the High Court on 10 December
2020;
(x)
The High Court has drawn a balance between the rights of
the accused and the family of the deceased victim. A
substantive Writ Petition has been filed by the informant,
stating that it was only through a tweet on the social media
that she had learned of the  A‘ summary and that she had not
been heard before the order was passed by the Magistrate
accepting the police report;
(xi)
Even when  A‘ Summary has been accepted in terms of
Para 219(3) of the Bombay Police Manual, there is no
restraint on a further investigation being carried out by the
Investigating Officer under Section 173(8) of the CrPC. An
A‘ summary postulates that there was no completed
investigation. Hence, requiring prior judicial sanction as a
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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precondition for conducting further investigation after the filing
of an  A‘ summary will impede the ability of investigating
authorities to effectively perform their role. Such a course of
action is also permissible in view of the decision of this Court
in Vinubhai Haribhai Malaviya vs State of Gujarat9; and
(xii) The High Court was justified in coming to the conclusion that
there was nothing extraordinary in the facts of the present
case to shock the conscience of the Court so as to take
recourse to its extraordinary jurisdiction under Article 226 to
direct the release of the appellant on interim bail. Any other
view would lead to the jurisdiction of the High Court under
Article 226 being extended to grant the remedy of an
application for bail, which is already available under Section
439 of the CrPC.
26. In the same vein as the submissions which have been urged on
behalf of the second respondent by Mr Amit Desai, Mr Kapil Sibal, learned
Senior Counsel appearing on behalf of the first respondent, has submitted
that the High Court has been justified in coming to the conclusion that
there was no warrant to interfere in the course of the investigation in the
present case. Mr Sibal also argued that Mr Salve has wrongly focused
on other cases implicating the appellant in the course of his arguments.
Learned Senior Counsel has urged that the appellant must pursue his
remedy in accordance with law under Section 439 of the
CrPC for which
the liberty has been granted by the High Court. Further, Mr Sibal submitted
that an  A‘ summary is in fact not a closure report and investigation does
not stand concluded. Hence, he submitted that the Investigating Officer
was within jurisdiction in carrying out further investigation. Finally, Mr
Sibal argued that while he is alive to the fact that the personal liberty of
the appellant is at stake in the present case, this Court does refuse to
interfere in many cases exhibiting similar features. Therefore, he argued
that this Court should stay its hand in the present case.
27. Mr CU Singh, learned Senior Counsel appearing on behalf of
the fifth respondent, the informant, has joined the submissions of the first
and second respondents in opposing these appeals. It was submitted that:
(i)
After the order of judicial remand on 4 November 2020, an
application for bail was filed on behalf of the appellant and
withdrawn;
9 2019 SCC OnLine SC 1346
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(ii)
On 7 November 2020, the Sessions Court issued a notice on
the revision application filed by the State against the order
declining to grant remand to police custody;
(iii)
On 7 November 2020, the High Court posted the proceedings
for pronouncement of judgment on 9 November 2020 and
granted liberty to the appellant to file an application for bail.
Thereafter, an application for bail was filed on 8 November
2020 by the appellant. A Special Leave Petition was filed in
this Court thereafter. The High Court has correctly declined
to enquire into the plea for quashing the FIR and the alleged
mala fides on the ground that counters are still to be filed;
and
(iv)
On 15 October 2020, the Crime Detection Unit intimated the
CJM that it was commencing further investigation on which
the CJM has made an endorsement that it had been “noted
and filed”. Statements were recorded under Section 164 of
the CrPC. Section 173(8) of the CrPC confers a broad power
of further investigation on the Investigating Officer. Having
regard to the context of an  A‘ summary, this power has
been legitimately exercised in the present case. The exercise
of the power of further investigation under Section 173(8) of
the CrPC would not require judicial sanction.
28. Together with the present Civil Appeal, this Court has also
heard submissions in two companion Civil Appeals. In the two companion
appeals, submissions have been made before this Court by Mr Gopal
Sankaranarayanan and Mr Mukul
Rohatgi, learned Senior Counsel.
F. Criminal Appeal No. 743 of 2020 (Arising out of SLP
(Crl) No. 5599 of 2020)
29. Mr Gopal Sankaranarayanan, learned Senior Counsel, submitted
that the appeal has been filed by the sister of Mr Feroz Shaikh who has
been named as an accused.
30. Mr Feroz Shaikh is a Director in iCastX Technologies Private
Limited. In 2016, iCastX Technologies hired the services of M/s Atos
India Private Limited for the work of construction, renovation and
refurbishing of their office premises at Andheri East, Mumbai. Atos India
Private Limited in turn sub-contracted the work to CDPL. Hence, it has
been submitted that there was privity of relationship between iCastX
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Technologies and CDPL. Mr Sankaranarayanan submitted that the three
appellants represent the interest of three distinct individuals connected
with three different companies.
31. Mr Sankaranarayanan has supported the submissions on the
essential requirements of Section 107 of the IPC by relying on the
decisions in Madan Mohan Singh vs State of Gujarat10, Sunil Bharti
Mittal vs Central Bureau of Investigation11 and Common Cause
vs Union of India12 (“Common Cause”). Mr. Sankaranarayanan further
argued that there was no reference about his client in the FIR filed on 5
May 2018 at the behest of the informant. Finally, he relied on this Court‘s
judgment in Vineet Narain and Ors. vs Union of India and Ors.13 to
urge that executive interference in the course of an investigation or
prosecution is impermissible.
G. Criminal Appeal No. 744 of 2020 (Arising out of SLP (Crl)
No. 5600 of 2020)
32. Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf
of the appellant, submitted that admittedly all the three accused named in
the FIR are unconnected. The appellant is a Director in a private limited
company by the name of SmartWork Business Centre Private Limited
with less than one per cent of the shareholding standing in his own name.
33. The company which has offices in New Delhi and Kolkata
had engaged the services of several vendors/contractors in order to furnish
their business centre at Pune, one of whom was CDPL and a
purchase
order of Rs 4.17 crores was issued. Thereafter, there were substantial
delays and discrepancies in the execution of the work by CDPL which
led to an exchange of mails. Furthermore, an invoice of over Rs 5 crores
was raised including an amount of Rs 83.02 lacs towards GST. Pursuant
to this, a payment of Rs 4.40 crores was made but there was a genuine
commercial dispute between the two companies in relation to the remaining
amount.
34. It has been submitted that on the face of it, there is no basis in
the FIR to even remotely implicate the appellant in the alleged offences
under Section 306 read with Section 34 of the IPC. There is not even an
10 (2010) 8 SCC 628
11 (2015) 4 SCC 609
12 (2018) 5 SCC 1
13 (1988) 1 SCC 226
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indication of a personal interaction or connection between the appellant
and the deceased. Furthermore, a civil suit regarding the disputed debt
between their companies is pending.
35. The invocation of the jurisdiction of the High Court under
Articles 226/227 of the Constitution and Section 482 of the CrPC is in
support of two distinct reliefs. The first relief is for a writ of habeas
corpus. This relief has been claimed on the basis that the arrest and
consequent detention of the appellant was due to a reinvestigation which
was commenced after placing reliance on the letter dated 26 May 2020
of the Home Department of the Government of Maharashtra to the
Director General of Police. The submission is that once the CJM accepted
the report  submitted  by  the  Investigating  Officer  and  issued  an   A‘
summary  on  16 April 2019, it was not open to the Investigating Officer
to commence a reinvestigation without judicial sanction.
36. Joining issue with this submission is the argument of the State
that the power of the investigating officer to order a further investigation
under Section 173(8) of the CrPC is independent of the jurisdiction of the
Magistrate. In the view of the State, Section 4 of the Bombay Police
Act, 1951 entrusts the superintendence of the police force to it and in the
exercise of that power, it was legitimately open to the Home Department
to direct a further investigation (though the letter uses the expression  re-
investigation‘) to
be conducted based on the complaint of the victim that
the offence had not been properly investigated. Moreover, the State has
relied on the provisions of Section 36 of the CrPC under which police
officers superior in rank to an officer in charge of a police station are
entitled to exercise the same powers throughout the local area to which
they are appointed.
37. According to the appellant, when proceedings before the High
Court came to be instituted, an order of remand had not been passed and
it was only subsequently on the night of 4 November 2020 that an order
granting judicial custody was passed by the CJM. Be that as it may, the
High Court has recorded that prayer (a) for the issuance of a writ of
Habeas Corpus was not pressed on behalf of the appellant. Once the
prayer for a writ of habeas corpus was not pressed (as the High Court
records), it was unnecessary for the High Court to devote several pages
in the impugned judgment on discussing the issue.
38. The remaining prayer before the High Court was for quashing
the FIR. Mr Rohatgi submitted that the order of arrest is illegal and the
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appellant is entitled to have it so declared by invoking the jurisdiction
under Article 226 of the Constitution and Section 482 of the CrPC. It
was urged that the power under Section 173(8) is to cause a “further
investigation” and no power has been vested to either reinvestigate or
cause a fresh investigation to be made. The power to reinvestigate or to
cause fresh investigation, it was urged, is vested only in the constitutional
courts. Contrary to the provisions of Section 173(8), it was urged, the
Home Department in its letter to the deputy Inspector General has directed
a reinvestigation. In the present case, the communication of the Home
Department makes it abundantly clear that a reinvestigation was ordered
under the authority of the State Home Minister which, according to the
submission, is ultra vires the provisions of law. Mr Rohatgi has
emphasised that the application for remand makes it clear that what is
ordered was a reinvestigation, since the application has repeatedly used
the expression “comprehensive reinvestigation” and the fact that
“reinvestigation has become necessary”.
39. Finally, it was urged that the order of the Home Minister in the
State was issued on 26 May 2020 whereas the investigation commenced
on 15 October 2020 and the arrest was made on 4 November 2020 in
respect of an FIR lodged in May 2018 on which an  A‘ summary had
been accepted on 16 April 2019. In sum and substance, it has
been
submitted that after the order of closure on 16 April 2019, a reinvestigation
could not have been ordered in the case. The arrest has been termed
unlawful.
H. Jurisdiction of the High Court under Article 226 and
Section 482 CrPC
40. While considering the rival submissions, it is essential for the
purpose of the present appeals to elucidate on the nature of the jurisdiction
that is vested in the High Court under Article 226 of the Constitution and
Section 482 of the CrPC. This issue must be analysed from the perspective
of the position that the proceeding before the High Court, after the prayer
for the grant of a writ of Habeas Corpus was given up, is for quashing
the FIR being CR No. 0059 of 2018 lodged on 5 May 2018.
41. The High Court has dwelt at length on the decision of this
Court in Habib Jeelani (supra). The High Court observed that the powers
to quash “are to be exercised sparingly and that too, in rare and appropriate
cases and in extreme circumstances to prevent abuse of process of law”.
Applying this principle, the High Court opined:
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“45. The principle stated therein will equally apply to the exercise
of this Court’s power under Article 226 of the Constitution of India
and section 482 of the Code of Criminal Procedure while
considering the applications for bail since the petitioner is already
in Judicial custody. The legislature has provided specific remedy
under Section 439 Cr.P.C. for applying for regular bail. Having
regard to the alternate and efficacious remedy available to the
petitioner under section 439 of the Code of Criminal Procedure,
this Court has to exercise judicial restraint while entertaining
application in the nature of seeking regular bail in a petition filed
under Article 226 of the Constitution of India read with section
482 of Code of Criminal Procedure.”
On the basis of the above foundation, the High Court has declined
to even prima facie enquire into whether the allegations contained in the
FIR, read as they stand, attract the provisions of Section 306 read with
Section 34 of the IPC. In its view, since the petition was being posted for
hearing on 10 December 2020, it was not inclined to enquire into this
aspect of the case and the appellant would be at liberty to apply for
regular bail under Section 439.
42. Now, it is in this background that it becomes necessary for this
Court to evaluate what, as a matter of principle, is the true import of the
decision of this Court in Habib Jeelani (supra). This was a case where,
on the basis of a report under Section 154
off the CrPC, an FIR was
registered for offences punishable under Sections 147, 148, 149 and 307
of the IPC. Challenging the initiation of the criminal action, the inherent
jurisdiction of the High Court to quash an FIR was invoked. The High
Court (as paragraph 2 of the judgment of this Court in Habib Jeelani
(supra) indicates) expressed its “disinclination to interfere on the ground
that it was not appropriate to stay the investigation of the case”. It was in
this background that the following issue was formulated in the first
paragraph of the judgment of this Court, speaking through Justice Dipak
Misra (as he then was), for consideration:
“1. The seminal issue that arises for consideration in this appeal,
by special leave, is whether the High Court while refusing to
exercise inherent powers under Section 482 of the Code of Criminal
Procedure (CrPC) to interfere in an application for quashment of
the investigation, can restrain the investigating agency not to arrest
the accused persons during the course of investigation.”
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Between paragraphs 11 and 15, this Court then evaluated the nature
of the jurisdiction under Section 482 of the CrPC or under Article 226 of
the Constitution for quashing an FIR and observed:
“11. Once an FIR is registered, the accused persons can always
approach the High Court under Section 482 CrPC or under Article
226 of the Constitution for quashing of the FIR. In Bhajan Lal
[State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426 : AIR 1992 SC 604] the two-Judge Bench after
referring to Hazari Lal Gupta v. Rameshwar Prasad [Hazari
Lal Gupta v. Rameshwar Prasad, (1972) 1 SCC 452 : 1972 SCC
(Cri) 208] , Jehan Singh v. Delhi Admn. [Jehan Singh v. Delhi
Admn., (1974) 4 SCC 522 : 1974 SCC (Cri) 558 : AIR 1974 SC
1146] , Amar Nath v. State of Haryana [Amar Nath v. State of
Haryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] , Kurukshetra
University v. State of Haryana [Kurukshetra University v. State
of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] , State of
Bihar v. J.A.C. Saldanha [State of Bihar v. J.A.C. Saldanha,
(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] ,
State  of W.B. v. Swapan Kumar Guha [State of W.B. v. Swapan
Kumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982
SC 949], Nagawwa v. Veeranna Shivalingappa Konjalgi
[Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC
736 : 1976 SCC (Cri) 507 : AIR 1976 SC 1947] , Madhavrao
Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre
[Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Bihar
v. Murad Ali Khan [State of Bihar v. Murad Ali Khan, (1988) 4
SCC 655 : 1989 SCC (Cri) 27 : AIR 1989 SC 1] and some other
authorities that had dealt with the contours of exercise of inherent
powers of the High Court, thought it appropriate to mention certain
category of cases by way of illustration wherein the extraordinary
power under Article 226 of the Constitution or inherent power
under Section 482 CrPC could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice. The Court also observed that it may not be possible to lay
down any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list
of myriad cases wherein such power should be exercised.
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12. The illustrations given by the Court need to be recapitulated:
(Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp
(1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] , SCC pp.
378-79, para 102)
“(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an
express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code
or the Act concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fides and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge.”
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
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It is worthy to note that the Court has clarified that the said
parameters or guidelines are not exhaustive but only illustrative.
Nevertheless, it throws light on the circumstances and situations
where the Court’s inherent power can be exercised.
13. There can be no dispute over the proposition that inherent
power in a matter of quashment of FIR has to be exercised
sparingly and with caution and when and only when such exercise
is justified by the test specifically laid down in the provision itself.
There is no denial of the fact that the power under Section 482
CrPC is very wide but it needs no special emphasis to state that
conferment of wide power requires the Court to be more cautious.
It casts an onerous and more diligent duty on the Court.
14. In this regard, it would be seemly to reproduce a passage
from Kurukshetra University [Kurukshetra University v. State
of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] wherein
Chandrachud, J. (as his Lordship then was) opined thus: (SCC p.
451, para 2)
“2. It surprises us in the extreme that the High Court thought
that in the exercise of its inherent powers under Section 482 of the
Code of Criminal Procedure, it could quash a first information
report. The police had not even commenced investigation into the
complaint filed by the Warden of the University and no proceeding
at all was pending in any court in pursuance of the FIR. It ought to
be realised that inherent
powers do not confer an arbitrary
jurisdiction on the High Court to act according to whim or caprice.
That statutory power has to be exercised sparingly, with
circumspection and in the rarest of rare cases.”
15. We have referred to the said decisions only to stress upon
the issue, how the exercise of jurisdiction by the High Court in a
proceeding relating to quashment of FIR can be justified. We repeat
even at the cost of repetition that the said power has to be exercised
in a very sparing manner and is not to be used to choke or smother
the prosecution that is legitimate. The surprise   that   was
expressed   almost   four   decades   ago in Kurukshetra University
case [Kurukshetra University v. State of Haryana, (1977) 4
SCC 451 : 1977 SCC (Cri) 613] compels us to observe that we
are also surprised by the impugned order.”
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43. Thereafter, this Court noted that “the High Court has not
referred to allegations made in the FIR or what has come out in the
investigation”. While on the one hand, the High Court declined in
exercising its jurisdiction under Section 482 to quash the proceedings, it
nonetheless directed the police not to arrest the appellants during the
pendency of the investigation. It was in this context that this Court observed
that the High Court had, while dismissing the applications under Section
482, passed orders that if the accused surrenders before the trial
Magistrate, he shall be admitted to bail on such terms and conditions as it
was deemed fit and appropriate. After adverting to the earlier decision in
Hema Mishra vs State of UP14, this Court observed:
“23. We have referred to the authority in Hema Mishra [Hema
Mishra v. State of U.P., (2014) 4 SCC 453 : (2014) 2 SCC (Cri)
363] as that specifically deals with the case that came from the
State of Uttar Pradesh where Section 438 CrPC has been deleted.
It has concurred with the view expressed in Lal Kamlendra
Pratap    Singh [Lal     Kamlendra     Pratap Singh v. State of
U.P., (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330] . The said
decision, needless to say, has to be read in the context of the State
of Uttar Pradesh. We do not intend to elaborate the said principle
as that is not necessary in this case. What needs to be stated here
is that the States where Section 438 CrPC has not been deleted
and kept on
the statute book, the High Court should be well advised
that while entertaining petitions under Article 226 of the Constitution
or Section 482 CrPC, it exercises judicial restraint. We may hasten
to clarify that the Court, if it thinks fit, regard being had to the
parameters of quashing and the self-restraint imposed by law, has
the jurisdiction to quash the investigation and may pass appropriate
interim orders as thought apposite in law, but it is absolutely
inconceivable and unthinkable to pass an order of the present nature
while declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is really
inappropriate and unseemly. It has no sanction in law. The courts
should oust and obstruct unscrupulous litigants from invoking the
inherent jurisdiction of the Court on the drop of a hat to file an
application for quashing of launching an FIR or investigation and
then seek relief by an interim order. It is the obligation of the Court
to keep such unprincipled and unethical litigants at bay.”
14 (2014) 4 SCC 453
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44. The above decision thus arose in a situation where the High
Court had declined to entertain a petition for quashing an FIR under
Section 482 of the CrPC. However, it nonetheless directed the
investigating agency not to arrest the accused during the pendency of
the investigation. This was held to be impermissible by this Court. On the
other hand, this Court clarified that the High Court if it thinks fit, having
regard to the parameters for quashing and the self- restraint imposed by
law, has the jurisdiction to quash the investigation “and may pass
appropriate interim orders as thought apposite in law”. Clearly therefore,
the High Court in the present case has misdirected itself in declining to
enquire prima facie on a petition for quashing whether the parameters
in the exercise of that jurisdiction have been duly established and if so
whether a case for the grant of interim bail has been made out. The
settled principles which have been consistently reiterated since the
judgment of this Court in State of Haryana vs Bhajan Lal15 (“Bhajan
Lal”) include a situation where the allegations made in the FIR or the
complaint, even if they are taken at their face value and accepted in their
entirety, do not prima facie constitute any offence or make out a case
against the accused. This legal position was recently reiterated in a
decision by a two-judge Bench of this Court in Kamal Shivaji
Pokarnekar vs State of
Maharashtra16.
I. Prima Facie evaluation of the FIR and the grant of bail
45. The striking aspect of the impugned judgment of the High
Court spanning over fifty-six pages is the absence of any evaluation
even prima facie of the most basic issue. The High Court, in other words,
failed to apply its mind to a fundamental issue which needed to be
considered while dealing with a petition for quashing under Article 226 of
the Constitution or Section 482 of the CrPC. The High Court, by its
judgment dated 9 November 2020, has instead allowed the petition for
quashing to stand over for hearing a month later, and therefore declined
to allow the appellant‘s prayer for interim bail and relegated him to the
remedy under Section 439 of the CrPC. In the meantime, liberty has
been the casualty. The High Court having failed to evaluate prima facie
whether the allegations in the FIR, taken as they stand, bring the case
within the fold of Section 306 read with Section 34 of the IPC, this Court
is now called upon to perform the task.
15 1992 Supp. 1 SCC 335
16 (2019) 14 SCC 350
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46. Before we evaluate the contents of the FIR, a reference to
Section 306 of the IPC is necessary. Section 306 stipulates that if a
person commits suicide “whoever abets the commission of such suicide”
shall be punished with imprisonment extending up to 10 years17. Section
107 is comprised within Chapter V of the IPC, which is titled “Of
Abetment”. Section 107 provides:
“107. Abetment of a thing.—A person abets the doing of a thing,
who— First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and in order to the
doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing
of that thing.
Explanation 1.—A person who, by willful misrepresentation, or by
willful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorised by a warrant from a
Court of Justice to apprehend Z, B, knowing that fact and also
that C is not Z, willfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation
the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the
commission of an act, does anything in order to facilitate
the
commission of that act, and thereby facilitates the commission
thereof, is said to aid the doing of that act.”
47. The first segment of Section 107 defines abetment as the
instigation of a person to do a particular thing. The second segment defines
it with reference to engaging in a conspiracy with one or more other
persons for the doing of a thing, and an act or illegal omission in pursuance
of the conspiracy. Under the third segment, abetment is founded on
intentionally aiding the doing of a thing either by an act or omission.
These provisions have been construed specifically in the context of Section
17 306. Abetment of suicide.—If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
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306 to which a reference is necessary in order to furnish the legal
foundation for assessing the contents of the FIR. These provisions have
been construed in the earlier judgements of this Court in State of West
Bengal vs Orilal Jaiswal18, Randhir Singh vs State of Punjab19,
Kishori Lal vs State of MP20 (“Kishori Lal”) and Kishangiri
Mangalgiri Goswami vs State of Gujarat21. In Amalendu Pal vs State
of West Bengal22, Justice Mukundakam Sharma, speaking for a two
judge Bench of this Court and having adverted to the earlier decisions,
observed:
“12…It  is  also  to  be  borne  in  mind  that  in  cases  of  alleged
abetment of suicide there must be proof of direct or indirect acts
of incitement to the commission of suicide. Merely on the allegation
of harassment without there being any positive action proximate
to the time of occurrence on the part of the accused which led or
compelled the person to commit suicide, conviction in terms of
Section 306 IPC is not sustainable.”
The Court noted that before a person may be said to have abetted
the commission of suicide, they “must have played an active role by an
act of instigation or by doing certain act to facilitate the commission of
suicide”. Instigation, as this Court held in Kishori Lal (supra), “literally
means to provoke, incite, urge on or bring about by persuasion to do
anything”. In S S Chheena vs Vijay Kumar Mahajan23, a two judge
Bench of this Court, speaking
through Justice Dalveer Bhandari, observed:
“25. Abetment involves a mental process of instigating a person or
intentionally aiding a person in doing of a thing. Without a positive
act on the part of the accused to instigate or aid in committing
suicide, conviction cannot be sustained. The intention of the
legislature and the ratio of the cases decided by this Court is clear
that in order to convict a person under Section 306 IPC there has
to be a clear mens rea to commit the offence. It also requires an
active act or direct act which led the deceased to commit suicide
seeing no option and that act must have been intended to push the
deceased into such a position that he committed suicide.”
18 (1994) 1 SCC 73
19 (2004) 13 SCC 129
20 (2007) 10 SCC 797
21 (2009) 4 SCC 52
22 (2010) 1 SCC 707
23 (2010) 12 SCC 190
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48. Madan Mohan Singh vs State of Gujarat24 was specifically
a case which arose in the context of a petition under Section 482 of the
CrPC where the High Court had dismissed the petition for quashing an
FIR registered for offences under Sections 306 and 294(B) of the IPC.
In that case, the FIR was registered on a complaint of the spouse of the
deceased who was working as a driver with the accused. The driver had
been rebuked by the employer and was later found to be dead on having
committed suicide. A suicide note was relied upon in the FIR, the contents
of which indicated that the driver had not been given a fixed vehicle
unlike other drivers besides which he had other complaints including the
deduction of 15 days‘ wages from his salary. The suicide note named the
accused–appellant. In the decision of a two judge Bench of this Court,
delivered by Justice V S Sirpurkar, the test laid down in Bhajan Lal
(supra) was applied and the Court held:
“10. We are convinced that there is absolutely nothing in this suicide
note or the FIR which would even distantly be viewed as an
offence much less under Section 306 IPC. We could not find
anything in the FIR or in the so-called suicide note which could be
suggested as abetment to commit suicide. In such matters there
must be an allegation that the accused had instigated the deceased
to commit suicide or secondly, had engaged with some other person
in a conspiracy and lastly, that the accused had in any way aided
any
act or illegal omission to bring about the suicide.
11. In spite of our best efforts and microscopic examination of the
suicide note and the FIR, all that we find is that the suicide note is
a rhetoric document in the nature of a departmental complaint. It
also suggests some mental imbalance on the part of the deceased
which he himself describes as depression. In the so-called suicide
note, it cannot be said that the accused ever intended that the
driver under him should commit suicide or should end his life and
did anything in that behalf. Even if it is accepted that the accused
changed the duty of the driver or that the accused asked him not
to take the keys of the car and to keep the keys of the car in the
office itself, it does not mean that the accused intended or knew
that the driver should commit suicide because of this.”
Dealing with the provisions of Section 306 of the IPC and the meaning
of abetment within the meaning of Section 107, the Court observed:
24 (2010) 8 SCC 628
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“12. In order to bring out an offence under Section 306 IPC specific
abetment as contemplated by Section 107 IPC on the part of the
accused with an intention to bring about the suicide of the person
concerned as a result of that abetment is required. The intention
of the accused to aid or to instigate or to abet the deceased to
commit suicide is a must for this particular offence under Section
306 IPC. We are of the clear opinion that there is no question of
there being any material for offence under Section 306 IPC either
in the FIR or in the so-called suicide note.”
The Court noted that the suicide note expressed a state of anguish
of the deceased and “cannot be depicted as expressing anything intentional
on the part of the accused that the deceased might commit suicide”.
Reversing the judgement of the High Court, the petition under Section
482 was allowed and the FIR was quashed.
49. In a concurring judgment delivered by one of us (Dhananjaya
Y Chandrachud J) in the decision of the Constitution Bench in Common
Cause (supra), the provisions of Section 107 were explained with the
following observations:
“458. For abetting an offence, the person abetting must have
intentionally aided the commission of the crime. Abetment requires
an instigation to commit or intentionally aiding the commission of a
crime. It presupposes a course of conduct or action which (in the
context of the present discussion) facilitates another
to end life.
Hence abetment of suicide is an offence expressly punishable under
Sections 305 and 306 IPC.”
50. More recently in M Arjunan vs State (represented by its
Inspector of Police)25, a two judge Bench of this Court, speaking
through Justice R.Banumathi, elucidated the essential ingredients of the
offence under Section 306 of the IPC in the following observations:
“7. The essential ingredients of the offence under Section 306
IPC are: (i) the abetment; (ii) the intention of the accused to aid
or instigate or abet the deceased to commit suicide. The act of the
accused, however, insulting the deceased by using abusive language
will not, by itself, constitute the abetment of suicide. There should
be evidence capable of suggesting that the accused intended by
25 (2019) 3 SCC 315
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such act to instigate the deceased to commit suicide. Unless the
ingredients of instigation/abetment to commit suicide are satisfied
the accused cannot be convicted under Section 306 IPC.”
51. Similarly, in another recent judgment of this Court in Ude Singh
and Ors. vs State of Haryana26, a two judge Bench of this Court,
speaking through Justice Dinesh Maheshwari, expounded on the
ingredients of Section 306 of the IPC, and the factors to be considered in
determining whether a case falls within the ken of the aforesaid provision,
in the following terms:
“38. In cases of alleged abetment of suicide, there must be a proof
of direct or indirect act/s of incitement to the commission of suicide.
It could hardly be disputed that the question of cause of a suicide,
particularly in the context of an offence of abetment of suicide,
remains a vexed one, involving multifaceted and complex attributes
of human behaviour and responses/reactions. In the case of
accusation for abetment of suicide, the Court would be looking for
cogent and convincing proof of the act/s of incitement to the
commission of suicide. In the case of suicide, mere allegation of
harassment of the deceased by another person would not suffice
unless there be such action on the part of the accused which
compels the person to commit suicide; and such an offending action
ought to be proximate to the time of occurrence. Whether a person
has abetted in the commission of suicide by another or not, could
only be gathered from the facts and circumstances of each case.
39. For the purpose of finding out if a person has abetted
commission of suicide by another, the consideration would be if
the accused is guilty of the act of instigation of the act of suicide.
As explained and reiterated by this Court in the decisions above-
referred, instigation means to goad, urge forward, provoke, incite
or encourage to do an act. If the persons who committed suicide
had been hypersensitive and the action of accused is otherwise
not ordinarily expected to induce a similarly circumstanced person
to commit suicide, it may not be safe to hold the accused guilty of
abetment of suicide. But, on the other hand, if the accused by his
acts and by his continuous course of conduct creates a situation
26 Criminal Appeal No. 233 of 2010 decided on 25 July 2019
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
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which leads the deceased perceiving no other option except to
commit suicide, the case may fall within the four-corners of Section
306 IPC. If the accused plays an active role in tarnishing the self-
esteem and self-respect of the victim, which eventually draws the
victim to commit suicide, the accused may be held guilty of
abetment of suicide. The question of mens rea on the part of the
accused in such cases would be examined with reference to the
actual acts and deeds of the accused and if the acts and deeds are
only of such nature where the accused intended nothing more
than harassment or snap show of anger, a particular case may fall
short of the offence of abetment of suicide. However, if the accused
kept on irritating or annoying the deceased by words or deeds until
the deceased reacted or was provoked, a particular case may be
that of abetment of suicide. Such being the matter of delicate
analysis of human behaviour, each case is required to be examined
on its own facts, while taking note of all the surrounding factors
having bearing on the actions and psyche of the accused and the
deceased.”
Similarly, in Rajesh vs State of Haryana27, a two judge Bench of
this Court, speaking through Justice L. Nageswara Rao, held as follows:
“9. Conviction under Section 306 IPC is not sustainable on the
allegation of harassment without there being any positive action
proximate to the time of occurrence on the part of the
accused,
which led or compelled the person to commit suicide. In order to
bring a case within the purview of Section 306 IPC, there must be
a case of suicide and in the commission of the said offence, the
person who is said to have abetted the commission of suicide must
have played an active role by an act of instigation or by doing
certain act to facilitate the commission of suicide. Therefore, the
act of abetment by the person charged with the said offence must
be proved and established by the prosecution before he could be
convicted under Section 306 IPC.”
In a recent decision of this Court in Gurcharan Singh vs State of
Punjab28, a three judge Bench of this Court, speaking through Justice
Hrishikesh Roy, held thus:
27 Criminal Appeal No. 93 of 2019 decided on 18 January 2019
28 Criminal Appeal No. 40 of 2011 decided on 1 October 2020
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“15. As in all crimes, mens rea has to be established. To prove the
offence of abetment, as specified under Sec 107 of the IPC, the
state of mind to commit a particular crime must be visible, to
determine the culpability. In order to prove mens rea, there has to
be something on record to establish or show that the appellant
herein had a guilty mind and in furtherance of that state of mind,
abetted the suicide of the deceased.”
52. In Vaijnath Kondiba Khandke vs State of Maharashtra
and Ors.29, a two judge Bench of this Court, speaking through Justice
U.U. Lalit, dealt with an appeal against the rejection of an application
under Section 482 of the CrPC, for quashing an FIR registered under
Sections 306 and 506 read with Section 34 of the IPC. A person serving
in the office of the Deputy Director of Education Aurangabad had
committed suicide on 8 August 2017. His wife made a complaint to the
police that her husband was suffering from mental torture as his superiors
were getting heavy work done from her husband. This resulted in him
having to work from 10 AM to 10 PM and even at odd hours and on
holidays. The specific allegation against the appellant was that he had
stopped the deceased’s salary for one month and was threatening the
deceased that his increment would be stopped. This Court noted that
there was no suicide note, and the only material on record was in the
form of assertions made by the deceased‘s wife in her report to the
police. The Court went
on to hold that the facts on record were inadequate
and insufficient to bring home the charge of abetment of suicide under
Section 306 of the IPC. The mere factum of work being assigned by the
appellant to the deceased, or the stoppage of salary for a month, was not
enough to prove criminal intent or guilty mind. Consequently, proceedings
against the appellant were quashed.
53. On the other hand, we must also notice the decision in Praveen
Pradhan (supra) where a two judge Bench of this Court, speaking through
Justice B.S. Chauhan, dismissed an appeal against the rejection of an
application under Section 482 of the CrPC by the High Court for quashing
a criminal proceeding, implicating an offence under Section 306 of the
IPC. The suicide note which was left behind by the deceased showed,
as this Court observed, that “the appellant perpetually humiliated, exploited
and demoralised the deceased, who was compelled to indulge in wrongful
practices at the workplace, which hurt his self- respect tremendously.
29 (2018) 7 SCC 781
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The Court noted that the appellant always scolded the deceased and
tried to always force the deceased to resign. Resultantly, the Court
observed:
“19. Thus, the case is required to be considered in the light of the
aforesaid settled legal propositions. In the instant case, alleged
harassment had not been a casual feature, rather remained a matter
of persistent harassment. It is not a case of a driver; or a man
having an illicit relationship with a married woman, knowing that
she also had another paramour; and therefore, cannot be compared
to the situation of the deceased in the instant case, who was a
qualified graduate engineer and still suffered persistent harassment
and humiliation and additionally, also had to endure continuous illegal
demands made by the appellant, upon non- fulfilment of which, he
would be mercilessly harassed by the appellant for a prolonged
period of time. He had also been forced to work continuously for
long durations in the factory, vis-à-vis other employees which often
even entered to 16-17 hours at a stretch. Such harassment, coupled
with the utterance of words to the effect, that, “had there been
any other person in his place, he would have certainly committed
suicide” is what makes the present case distinct from the
aforementioned cases. Considering the facts and circumstances
of the present case, we do not think it is a case which requires any
interference by this Court as regards the
impugned judgment and
order [Criminal Miscellaneous Application No. 420 of 2006, decided
on 5-1-2012 (Utt)] of the High Court. The appeal is, therefore,
dismissed accordingly.”
The contents of the FIR therefore indicated that the deceased had
been subjected to harassment persistently and continuously and this was
coupled by words used by the accused which led to the commission of
suicide.
54. In Narayan Malhari Thorat vs Vinayak Deorao Bhagat30,
this Court, speaking through Justice U.U. Lalit, reversed the judgment of
a Division Bench of the High Court which had quashed criminal
proceedings in exercise of the jurisdiction under Section 482. This was a
case where the FIR was registered pursuant to the information received
from the appellant. The FIR stated that the son and daughter-in-law of
30 (2019) 13 SCC 598
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the appellant were teachers in Zila Parishad School. The respondent
used to call the daughter-in-law of the appellant on the phone and used to
harass her. Moreover, despite the efforts of the son of the appellant, the
respondent did not desist from doing so. This Court noted:
“12. We now consider the facts of the present case. There are
definite allegations that the first respondent would keep on calling
the wife of the victim on her mobile and keep harassing her which
allegations are supported by the statements of the mother and the
wife of the victim recorded during investigation. The record shows
that 3-4 days prior to the suicide there was an altercation between
the victim and the first respondent. In the light of these facts,
coupled with the fact that the suicide note made definite allegation
against first respondent, the High Court was not justified in entering
into question whether the first respondent had the requisite intention
to aid or instigate or abet the commission of suicide. At this juncture
when the investigation was yet to be completed and charge-sheet,
if any, was yet to be filed, the High Court ought not to have gone
into the aspect whether there was requisite mental element or
intention on part of the respondent.”
The above observations of the Court clearly indicated that there
was a specific allegation in the FIR bearing on the imputation that the
respondent had actively facilitated the commission of suicide by
continuously
harassing the spouse of the victim and in failing to rectify
his conduct despite the efforts of the victim.
55. Now in this backdrop, it becomes necessary to advert briefly
to the contents of the FIR in the present case. The FIR recites that the
spouse of the informant had a company carrying on the business of
architecture, interior design and engineering consultancy. According to
the informant, her husband was over the previous two years “having
pressure as he did not receive the money of work carried out by him”.
The FIR recites that the deceased had called at the office of the appellant
and spoken to his accountant for the payment of money. Apart from the
above statements, it has been stated that the deceased left behind a
suicide note stating that his “money is stuck and following owners of
respective companies are not paying our legitimate dues”. Prima facie,
on the application of the test which has been laid down by this Court in a
consistent line of authority which has been noted above, it cannot be said
that the appellant was guilty of having abetted the suicide within the
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meaning of Section 306 of the IPC. These observations, we must note,
are prima facie at this stage since the High Court is still to take up the
petition for quashing. Clearly however, the High Court in failing to notice
the contents of the FIR and to make a prima facie evaluation abdicated
its role, functions and jurisdiction when seized of a petition under Section
482 of the CrPC. The High Court recited the legal position that the
jurisdiction to quash under Section 482 has to be exercised sparingly.
These words, however, are not meaningless incantations, but have to be
assessed with reference to the contents of the particular FIR before the
High Court. If the High Court were to carry out a prima facie evaluation,
it would have been impossible for it not to notice the disconnect between
the FIR and the provisions of Section 306 of the IPC. The failure of the
High Court to do so has led it to adopting a position where it left the
appellant to pursue his remedies for regular bail under Section 439. The
High Court was clearly in error in failing to perform a duty which is
entrusted to it while evaluating a petition under Section 482 albeit at the
interim stage.
56. The petition before the High Court was instituted under Article
226 of the Constitution and Section 482 of the CrPC. While dealing with
the petition under section 482 for quashing the FIR, the High Court has
not considered whether prima facie the ingredients
of the offence have
been made out in the FIR. If the High Court were to have carried out this
exercise, it would (as we have held in this judgment) have been apparent
that the ingredients of the offence have not prima facie been established.
As a consequence of its failure to perform its function under Section
482, the High Court has disabled itself from exercising its jurisdiction
under Article 226 to consider the appellant’s application for bail. In
considering such an application under Article 226, the High Court must
be circumspect in exercising its powers on the basis of the facts of each
case.However, the High Court should not foreclose itself from the exercise
of the power when a citizen has been arbitrarily deprived of their personal
liberty in an excess of state power.
57. While considering an application for the grant of bail under
Article 226 in a suitable case, the High Court must consider the settled
factors which emerge from the precedents of this Court. These factors
can be summarized as follows:
(i)
The nature of the alleged offence, the nature of the accusation
and the severity of the punishment in the case of a conviction;
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(ii)
Whether there exists a reasonable apprehension of the
accused tampering with the witnesses or being a threat to
the complainant or the witnesses;
(iii)
The possibility of securing the presence of the accused at
the trial or the likelihood of the accused fleeing from justice;
(iv)
The antecedents of and circumstances which are peculiar to
the accused;
(v)
Whether prima facie the ingredients of the offence are made
out, on the basis of the allegations as they stand, in the FIR;
and
(vi)
The significant interests of the public or the State and other
similar considerations.
58. These principles have evolved over a period of time and emanate
from the following (among other) decisions: Prahlad Singh Bhati vs
NCT, Delhi31; Ram Govind Upadhyay vs Sudarshan Singh32; State
of UP vs Amarmani Tripathi33; Prasanta Kumar Sarkar vs Ashis
Chatterjee34; Sanjay Chandra vs CBI35; and P. Chidambaram vs
Central Bureau of Investigation36.
59. These principles are equally applicable to the exercise of
jurisdiction under Article 226 of the Constitution when the court is called
upon to secure the liberty of the accused. The High Court must exercise
its power with caution and circumspection, cognizant of the fact that this
jurisdiction is not a ready substitute for recourse to the remedy of bail
under Section 439 of the CrPC. In the backdrop of these principles, it
has become necessary to scrutinize the contents of the FIR in the case
at hand. In this batch of cases, a prima
facie evaluation of the FIR does
not establish the ingredients of the offence of abetment of suicide under
Section 306 of the IPC. The appellants are residents of India and do not
pose a flight risk during the investigation or the trial. There is no
apprehension of tampering of evidence or witnesses. Taking these factors
31 (2001) 4 SCC 280
32 (2002) 3 SCC 598
33 (2005) 8 SCC 21
34 (2010) 14 SCC 496
35 (2012) 1 SCC 40
36 Criminal Appeal No. 1605 of 2019 decided on 22 October 2019
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
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into consideration, the order dated 11 November 2020 envisaged the
release of the appellants on bail.
J. Human liberty and the role of Courts
60. Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted legislation. As such,
the citizen is subject to the edicts of criminal law and procedure. Section
482 recognizes the inherent power of the High Court to make such orders
as are necessary to give effect to the provisions of the CrPC “or prevent
abuse of the process of any Court or otherwise to secure the ends of
justice”. Decisions of this court require the High Courts, in exercising
the jurisdiction entrusted to them under Section 482, to act with
circumspection. In emphasising that the High Court must exercise this
power with a sense of restraint, the decisions of this Court are founded
on the basic principle that the due enforcement of criminal law should
not be obstructed by the accused taking recourse to artifices and
strategies. The public interest in ensuring the due investigation of crime
is protected by ensuring that the inherent power of the High Court is
exercised with caution. That indeed is one – and a significant - end of the
spectrum. The other end of the spectrum is equally important: the
recognition by Section 482 of the power inhering in the High Court to
prevent the abuse of process or to secure the ends of justice is a valuable
safeguard for
protecting liberty. The Code of Criminal Procedure of 1898
was enacted by a legislature which was not subject to constitutional rights
and limitations; yet it recognized the inherent power in Section 561A.
Post- Independence, the recognition by Parliament37 of the inherent power
of the High Court must be construed as an aid to preserve the
constitutional value of liberty. The writ of liberty runs through the fabric
of the Constitution. The need to ensure the fair investigation of crime is
undoubtedly important in itself, because it protects at one level the rights
of the victim and, at a more fundamental level, the societal interest in
ensuring that crime is investigated and dealt with in accordance with
law. On the other hand, the misuse of the criminal law is a matter of
which the High Court and the lower Courts in this country must be alive.
In the present case, the High Court could not but have been cognizant of
the specific ground which was raised before it by the appellant that he
was being made a target as a part of a series of occurrences which have
been taking place since April 2020. The specific case of the appellant is
37 Section 482 of the CrPC 1973
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that he has been targeted because his opinions on his television channel
are unpalatable to authority. Whether the appellant has established a
case for quashing the FIR is something on which the High Court will
take a final view when the proceedings are listed before it but we are
clearly of the view that in failing to make even a prima facie evaluation
of the FIR, the High Court abdicated its constitutional duty and function
as a protector of liberty. Courts must be alive to the need to safeguard
the public interest in ensuring that the due enforcement of criminal law is
not obstructed. The fair investigation of crime is an aid to it. Equally it is
the duty of courts across the spectrum – the district judiciary, the High
Courts and the Supreme Court – to ensure that the criminal law does not
become a weapon for the selective harassment of citizens. Courts should
be alive to both ends of the spectrum – the need to ensure the proper
enforcement of criminal law on the one hand and the need, on the other,
of ensuring that the law does not become a ruse for targeted harassment.
Liberty across human eras is as tenuous as tenuous can be. Liberty
survives by the vigilance of her citizens, on the cacophony of the media
and in the dusty corridors of courts alive to the rule of (and not by) law.
Yet, much too often, liberty is a casualty when one of these components
is found wanting.
61. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh
are undoubtedly right
in submitting that the procedural hierarchy of courts
in matters concerning the grant of bail needs to be respected. However,
there was a failure of the High Court to discharge its adjudicatory function
at two levels – first in declining to evaluate prima facie at the interim
stage in a petition for quashing the FIR as to whether an arguable case
has been made out, and secondly, in declining interim bail, as a consequence
of its failure to render a prima facie opinion on the first. The High Court
did have the power to protect the citizen by an interim order in a petition
invoking Article 226. Where the High Court has failed to do so, this
Court would be abdicating its role and functions as a constitutional court
if it refuses to interfere, despite the parameters for such interference
being met. The doors of this Court cannot be closed to a citizen who is
able to establish prima facie that the instrumentality of the State is being
weaponized for using the force of criminal law. Our courts must ensure
that they continue to remain the first line of defense against the deprivation
of the liberty of citizens. Deprivation of liberty even for a single day is
one day too many. We must always be mindful of the deeper systemic
implications of our decisions.
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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62. It would be apposite to extract the observations made, albeit in
a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a
decision of a three judge bench in Romila Thapar vs Union of India38:
“[T]he basic entitlement of every citizen who is faced with
allegations of criminal wrongdoing, is that the investigative process
should be fair. This is an integral component of the guarantee against
arbitrariness under Article 14 and of the right to life and personal
liberty under Article 21. If this Court were not to stand by the
principles which we have formulated, we may witness a soulful
requiem to liberty.”
The decision was a dissent in the facts of the case. The view of
the leading majority judgment is undoubtedly the view of the court, which
binds us. However, the principle quoted above is in line with the precedents
of this court.
63. More than four decades ago, in a celebrated judgment in State
of Rajasthan, Jaipur vs Balchand39, Justice Krishna Iyer pithily
reminded us that the basic rule of our criminal justice system is ‘bail, not
jail’40. The High Courts and Courts in the district judiciary of India must
enforce this principle in practice, and not forego that duty, leaving this
Court to intervene at all times. We must in particular also emphasise the
role of the district judiciary, which provides the first point of interface to
the citizen. Our district judiciary is wrongly referred to as the
‘subordinate
judiciary’. It may be subordinate in hierarchy but it is not subordinate in
terms of its importance in the lives of citizens or in terms of the duty to
render justice to them. High Courts get burdened when courts of first
instance decline to grant anticipatory bail or bail in deserving cases. This
continues in the Supreme Court as well, when High Courts do not grant
bail or anticipatory bail in cases falling within the parameters of the law.
The consequence for those who suffer incarceration are serious. Common
citizens without the means or resources to move the High Courts or this
Court languish as undertrials. Courts must be alive to the situation as it
prevails on the ground – in the jails and police stations where human
38
(2018) 10 SCC 753
39
(1977) 4 SCC 308
40
These words of Justice Krishna Iyer are not isolated silos in our jurisprudence,
but have been consistently followed in judgments of this Court for decades.
Some of these judgments are: State of U.P. vs Amarmani Tripathi, (2005) 8
SCC 21 and Sanjay Chandra vs CBI, (2012) 1 SCC 40.
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dignity has no protector. As judges, we would do well to remind ourselves
that it is through the instrumentality of bail that our criminal justice system‘s
primordial interest in preserving the presumption of innocence finds its
most eloquent expression. The remedy of bail is the “solemn expression
of the humaneness of the justice system”41. Tasked as we are with the
primary responsibility of preserving the liberty of all citizens, we cannot
countenance an approach that has the consequence of applying this basic
rule in an inverted form. We have given expression to our anguish in a
case where a citizen has approached this court. We have done so in
order to reiterate principles which must govern countless other faces
whose voices should not go unheard.
64. We would also like to take this opportunity to place on record
data sourced from the National Judicial Data Grid (“NJDG”) on the
number of bail applications currently pending in High Courts and District
Courts across India:
65. The data on the NJDG is available in the public realm. The
NJDG is a valuable resource for all High Courts to monitor the pendency
and disposal of cases, including criminal cases. For Chief Justices of the
High Courts, the information which is available is capable of being utilized
as a valuable instrument to promote access to justice, particularly in
matters concerning liberty. The Chief Justices of every High Court should
in their administrative capacities utilize the ICT tools
which are placed at
Pendency before the High Courts 
Bail Applications 
91,5684242
Criminal Matters (Writ Petitions, Case/Petitions, Appeals, 
Revisions and Applications) 
12,66,133 
Pendency before the District Courts 
Bail Applications 
1,96,861 
41
Arghya Sengupta and Ritvika Sharma,  Saharashri and the Supremes‘, (The Wire,
23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-
supremes>
42
For nine High Courts, no separate data is available in relation to pending bail
applications, which are quantified as pending applications simplicitor. Further,
for two High Courts, the data is only available for their principal bench and not
their circuit benches. More granulated data can be accessed at the website of the
NJDG, available at <www.njdg.ecourts.gov.in>.
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
946
SUPREME COURT REPORTS
[2020] 11 S.C.R.
their disposal in ensuring that access to justice is democratized and
equitably allocated. Liberty is not a gift for the few. Administrative judges
in charge of districts must also use the facility to engage with the District
judiciary and monitor pendency. As the data on the NJDG makes clear,
there is a pressing need for courts across the judicial hierarchy in India to
remedy the institutional problem of bail applications not being heard and
disposed of with expedition. Every court in our country would do well to
remember Lord Denning‘s powerful invocation in the first Hamlyn Lecture,
titled ‘Freedom under the Law’43:
“Whenever one of the judges takes seat, there is one application
which by long tradition has priority over all others.  The  counsel
has  but  to  say,   My  Lord,  I  have  an application which
concerns the liberty of the subject‘, and forthwith the judge will
put all other matters aside and hear it. …”
It is our earnest hope that our courts will exhibit acute awareness
to the need to expand the footprint of liberty and use our approach as a
decision-making yardstick for future cases involving the grant of bail.
66. Since the proceedings are pending before the High Court, we
clarify that the observations on the facts contained in the present judgment
are confined to a determination whether a case for grant of interim
protection was made out. Equally, the observations which are contained
in the
impugned order of the High Court were also at the interim stage
and will not affect the final resolution of the issues which arise and have
been raised before the High Court.
K. Conclusion
67. While reserving the judgment at the conclusion of arguments,
this Court had directed the release of all the three appellants on bail
pending the disposal of the proceedings before the High Court. The
following operative directions were issued on 11 November 2020:
“9 We are of the considered view that the High Court was in error
in rejecting the applications for the grant of interim bail. We
accordingly order and direct that Arnab Manoranjan Goswami,
43
Sir   Alfred   Denning,   Freedom   under   the   Law,   the   Hamlyn   Lectures,
First   Series,   available   at <https://socialsciences.exeter.ac.uk/media/
universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/
Free dom_Under_the_Law_1.pdf>.
A
B
C
D
E
F
G
H
947
Feroz Mohammad Shaikh and Neetish Sarda shall be released on
interim bail, subject to each of them executing a personal bond in
the amount of Rs 50,000 to be executed before the Jail
Superintendent. They are, however, directed to cooperate in the
investigation and shall not make any attempt to interfere with the
ongoing investigation or with the witnesses.
10 The concerned jail authorities and the Superintendent of Police,
Raigad are directed to ensure that this order is complied with
forthwith.
11 A certified copy of this order shall be issued during the course
of the day.”
68. The interim protection which has been granted to the above
accused by the order dated 11 November 2020 shall continue to remain
in operation pending the disposal of the proceedings before the High
Court and thereafter for a period of four weeks from the date of the
judgment of the High Court, should it become necessary for all or any of
them to take further recourse to their remedies in accordance with law.
69. The appeals are accordingly disposed of.
70. Pending application(s), if any, stand disposed of.
Ankit Gyan
Appeals disposed of.
ARNAB MANORANJAN GOSWAMI v. THE STATE OF
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]