In a major landslide victory for the media and for the journalists who are rightly considered as the fourth pillar of democracy apart from the executive, legislative and judiciary, the Bombay High Court in a most recently pronounced judgment titled Arnab Ranjan Goswami Vs State of Maharashtra and others in Criminal Writ Petition LD-VC No. 37/2020 in exercise of its criminal appellate jurisdiction delivered on June 30, 2020 very commendably, very courageously and very convincingly while giving cogent reasons granted interim relief to Arnab Goswami who is a well acclaimed and well respected journalist and is also anchor and Chief Editor of Republic TV by staying the two FIRs filed by Mumbai police against him under Sections 153, 153A, 153B, 295A, 500, 504, 505(2), 506, 120B and 117 of the IPC over alleged communication of the incidents of Palghar lynching. The Bench of Bombay High Court comprising of Justice Ujjal Bhuyan and Justice Riyaz Chagla very rightly observed in this latest, landmark and extremely laudable judgment that, “Prima facie no case was made out against him.” The Bench had reserved the order on the petitions on June 12.
It may be recalled here that earlier even the Supreme Court had very rightly quashed the multiple FIRs filed in various States and had confined the investigation only to the FIR lodged against Arnab Goswami in Mumbai. The Apex Court Bench comprising of Justice DY Chandrachud and Justice MR Shah had also granted him interim protection from arrest and had given Arnab the liberty to move the Bombay High Court with respect to quashing of FIR. Now Bombay High Court too has ensured that full justice is done with a fearless journalist like Arnab Goswami who enjoys an impeccable reputation all over!
Needless to say, it is most heartening to note that a Division Bench of Bombay High Court did not dither from launching a most scathing attack against victimizing fearless journalists by observing in simple, straight but forceful language in para 67 that, “We cannot have a Damocles sword hanging over the head of journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain.” This is a big victory not for just one journalist Arnab alone but for the entire fraternity of journalists as a whole but yes, Arnab has to be commended, complimented and congratulated for leading from the front in taking the bull by the horns knowing fully well the dangers that lay ahead!
While on the one hand, senior advocates Harish Salve and Dr Milind Sathe appeared on behalf of the petitioner i.e. Arnab Goswami, we saw how on the other hand senior advocates Kapil Sibal and Raja Thakare appeared for the State. Salve and Dr Sathe submitted that the FIRs were politically motivated with an attempt to muzzle critical voices against the Maharashtra government. Salve rightly argues in defence of petitioner that, “The transcripts of the telecast would have to be read as a whole; in other words, in its entirety. There should be no cherry picking of sentences from here and there and then say that this sentence is communal and therefrom an offence of provoking or inciting communal disharmony is committed.” It is a no-brainer that the very freedom of journalist to do independent journalism was at stake here which makes this case so all important!
While setting the background, it is pointed out in para 3 that, “Petitioner is a journalist. He is the Editor-in-chief of an English television news channel called Republic TV and a Hindi television news channel called Republic Bharat or R. Bharat. Petitioner hosts various news shows on both the channels. He is also the Managing Director of ARG Outlier Media Pvt. Ltd., the company which owns and operates both the channels.”
While elaborating on the facts of the case, it is then stated in para 4 that, “On 16.04.2020 there was a broadcast on Republic TV regarding an incident which took place on 16.04.2020 at Gadchinchale village of Palghar district in the State of Maharashtra. In this unfortunate incident three persons including two Sadhus were brutally lynched and killed by a mob allegedly in the presence of police and forest guard personnel. This incident was widely reported in the print and electronic media including by the news channels of the petitioner. On 21.04.2020 petitioner hosted a debate on R. Bharat regarding the said incident. According to the petitioner, a video recording of the said incident is in the public domain. In the debate, petitioner questioned the alleged tardy investigation into the incident and also the alleged attempt by authorities in the State Government to suppress the gravity of the said incident despite the incident happening in the presence of police personnel. Further, petitioner questioned the response or rather the silence of the Indian National Congress and its President Smt. Sonia Gandhi on the said incident and wondered aloud as to whether it was because the victims were Hindu Sadhus.”
More alarmingly, it is then revealed in para 5 that, “Following the above broadcast, a large number of First Information Reports (FIRs) came to be lodged against the petitioner in various states of the country by activists and supporters of Indian National Congress. According to the petitioner all the FIRs were filed within a short span of time based on identical cause of action and appeared to be part of a well coordinated, widespread, vindictive and malicious campaign launched by the Indian National Congress (for short ‘the Congress’ hereinafter) and by its activists to harass and punish the petitioner for making statements and allegations against the Congress and its members, particularly its present President for their response or rather silence on the above incident. All these FIRs alleged commission of offence by the petitioner under various provisions of the Indian Penal Code, 1860 (‘IPC’ for short), such as, sections 153, 153A, 153B, 295A, 298, 500, 504, 505, 506, 511 and120B. According to the petitioner, a campaign for his arrest was launched in the social media.”
Be it noted, it is then narrated in para 6 that, “The first of the FIRs was lodged before Sadar Police Station, Nagpur by respondent No. 3 who is a Cabinet Minister of Maharashtra and a prominent leader of the Congress party. This FIR was lodged on 22.04.2020 and was registered as FIR No. 238 of 2020.”
What is worse is that petitioner who is a journalist was himself physically attacked as revealed in para 7 which states that, “Petitioner has stated that on 23.04.2020 between 12:30 a.m. and 1:00 a.m. while he and his wife were returning home by car from his news studio at Worli, Mumbai, they were attacked by two persons on a motorcycle. When the assailants were confronted by the security personnel of the petitioner, the two of them had alleged to have disclosed their identity as members of the Congress. In this connection petitioner lodged FIR before the N.M. Joshi Marg Police Station on 23.04.2020 which has been registered as FIR No. 148 of 2020 under sections 341, 504 and 34 IPC.” In addition, what is most despicable is that multiple FIRs were lodged against him in different states! This is nothing but “an abuse of the due process of law”!
As it turned out, it is then envisaged in para 19 that, “Dr. Milind Sathe, learned senior counsel for the petitioner submits that petitioner has questioned two FIRs in this proceeding as being an abuse of the process of law and driven by ill motive towards the petitioner to cause harassment and intimidation to him due to political animosity. The first FIR i.e., FIR No. 238 of 2020 was initially registered in the Sadar Police Station, Nagpur and subsequently transferred to N.M. Joshi Marg Police Station, Mumbai on orders of the Supreme Court where it has been re-numbered as FIR No. 164 of 2020. This FIR pertains to a broadcast on R. Bharat on 21.04.2020 which was anchored by the petitioner. It related to an incident of lynching of two Sadhus by a mob in front of police personnel on 16.04.2020 at a place in Palghar district (referred to hereinafter as “the Palghar incident”). The second FIR being FIR No. 137 of 2020 was registered in the Pydhonie Police Station, Mumbai pertained to an incident of a huge crowd gathering in front of the Jama Masjid, Bandra in violation of lockdown norms on 14.04.2020.”
To put things in perspective, it is then observed in para 28 that, “At the outset we may advert to the judgment of the Supreme Court in the case of the petitioner dated 19.05.2020. The core issue before the Supreme Court and which was the basic concern of the Supreme Court was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action i.e., the programme which was telecast on R. Bharat on 21.04.2020 relating to the Palghar incident. At the time of passing of the interim order by the Supreme Court on 24.04.2020, one of the principles that was considered was the need to ensure that the criminal process did not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause of action in multiple states.”
While stating the obvious, it is then stated in para 28.1 that, “At the time of hearing, Supreme Court had drawn the attention of learned counsel for the respondents to the fact that the FIRs which were filed in various states by persons professing allegiance to the Congress party prima facie appeared to be reproductions of the same language and content. Responding to this, Mr. Sibal submitted that the Court might as well quash all other FIRs and allow investigation into the FIR which was transferred to the N.M. Joshi Marg Police Station to proceed in accordance with law.” This clearly shows how a well planned conspiracy was hatched against the petitioner who is a well reputed journalist to get him wrangled in many cases!
On the question of second FIR, it is very rightly and aptly pointed out in para 28.2 that, “Supreme Court referred to its decision in T.T. Anthony Vs. State of Kerala, (2001) 6 SCC 181, where it was held that there can be no second FIR when the information concerns the same cognizable offence alleged in the first FIR. It was held that barring situations in which a counter case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an abuse of the statutory power of investigation and may be a fit case for exercise of power either under section 482 Cr.P.C. or Articles 226/227 of the Constitution.”
To be sure, this stands further corroborated by para 28.3 which states that, “Supreme Court referred to its subsequent decisions on the above issue and applied the same to the case of the petitioner who faced multiple FIRs/complaints in diverse jurisdictions arising out of one and the same incident i.e., broadcast by the petitioner on 21.04.2020 in R. Bharat relating to the Palghar incident. On perusal of the FIRs and complaints Supreme Court noted that those were worded in identical terms leaving no manner of doubt that an identity of cause of action formed the allegations levelled against the petitioner on the basis of the programme which was broadcast on 21.04.2020; the language, content, sequencing of paragraphs and their numbering were found to be identical.”
To top it all, the Bench then rightly points out in para 28.4 that, “Supreme Court noted that petitioner is a media journalist. Exercise of journalistic freedom lie at the core of speech and expression protected by Article 19(1)(a). Airing of views on television shows which the petitioner hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). Supreme Court observed that India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. Though exercise of that fundamental right is not absolute, but to allow a journalist to be subjected to multiple complaints and in pursuit of his remedies to traverse multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation would have a stifling effect on the exercise of that freedom. Though the right of a journalist under Article 19(1)(a) is no higher than the right of a citizen to speak and express, we as a society should never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position.”
As if this was not enough, it is then further held in para 64 which came as a further vindication for the petitioner that, “On an overall reading of the FIR, statement of the informant and transcript of the broadcast, it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms. A mention is made by the petitioner of the role played by one Vinay Dubey, a Nationalist Congress Party activist having tweeted calling upon the migrant workers to congregate. Though the petitioner stated as a matter of fact that the crowd had gathered near the Jama Masjid, Bandra, he clarified his statement by saying that if such an incident had taken place outside a temple, he would have said the same thing. In such circumstances, to allege or impute any communal motive to what the petitioner had commented would be a distortion of the narrative. Prima facie, no offence as alleged can be said to have been committed by the petitioner.”
Finally, it is then held in the last para 69 that, “Accordingly and in the light of the above, the following orders are passed:
(1) This petition is admitted for hearing;
(2) Since all the parties are represented, issuance of notice stands obviated. However, office of the Attorney General of India be notified as regards challenge to vires of sections 153A and 153B(1) IPC;
(3) All further proceedings in FIR No. 164 of 2020 before the N.M. Joshi Marg Police Station, Mumbai and FIR No. 137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended; and
(4) Interim order passed on 09.06.2020 to the effect that no coercive steps shall be taken against the petitioner vis-à-vis the above two FIRs shall continue till disposal of this petition.”
To sum up, this bold, brilliant and blunt judgment of a Division Bench of two Judges of Bombay High Court has come as a big respite for all those fearless journalists who are repeatedly being targeted on one pretext or the other by political leaders, political workers, mafias and criminals! If Courts will not speak up for such fearless journalists like Arnab Goswami then who else will? No doubt, this most commendable, convincing and courageous decision of Bombay High Court has sent the right message to all such political tribe and their ilk that Courts cannot be allowed to ever become a convenient instrument or a potent weapon to silence such fearless, independent and forward looking journalists like Arnab Goswami by filing multiple FIRs in different States!