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Liberty Is Not A Gift For Few: SC Directs HCs, District Courts to Monitor Pendency of Bail Applications

It is a matter of immense satisfaction, tremendous happiness and also of considerable significance that the Supreme Court in Arnab Manoranjan Goswami vs The State of Maharashtra & Ors. In Criminal Appeal No. 742 of 2020 (Arising out of SLP (Cri) No. 5598 of 2020) with Criminal Appeal No. 743 of 2020 (Arising out of SLP (Cri) No. 5599 of 2020) and with Criminal Appeal No. 744 of 2020 (Arising out of SLP (Cri) No. 5600 of 2020)  delivered most recently on November 27, 2020 has minced absolutely no words to make it pretty clear that ‘liberty is not a gift for few’. It has also very rightly directed the High Courts and the District Courts to monitor the pendency of bail applications. It also very rightly directed that the High Courts and also the 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.

To start with, this learned, laudable, landmark and latest judgment authored by Dr Dhananjaya Y Chandrachud for himself and Justice Indira Banerjee first and foremost sets the ball rolling by observing in para 1 that, “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 Report (CR No. 0059 of 2018) (“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 reliefs ― (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;‖  are reflected in prayers (a), (b) and (c) of the petition before the High Court.”

As it turned out, it is then pointed out in para 3 that, “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 Jeelani (2017) 2 SCC 779 (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 extraordinary 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.”

To put things in perspective, it is then stated in para 4 that, “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.” Para 5 then states that, “The appellant was arrested on 4 November 2020 in connection with FIR 59 of 2018 which was registered at Alibaug Police Station under Sections 306 and 34 of the IPC.”

While dealing with the FIR, it must be described that the key point of para 7 states that, “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 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 Alibaug, she found the body of her mother-in-law lying on a bed and that her spouse had committed suicide by hanging.”

 

Be it noted, it is then stated in para 57 that, “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 FIR; and

(vi)                The significant interests of the public or the State and other similar considerations.”

While citing the relevant case laws, it is then stated in para 58 that, “These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs NCT, Delhi (2001) 4 SCC 280; Ram Govind Upadhyay vs Sudarshan Singh (2002) 3 SCC 598; State of UP vs Amarmani Tripathi (2005) 8 SCC 21; Prasanta Kumar Sarkar vs Ashis Chatterjee (2010) 14 SCC 496; Sanjay Chandra vs CBI (2012) 1 SCC 40; and P. Chidambaram vs Central Bureau of Investigation Criminal Appeal No. 1605 of 2019 decided on 22 October 2019.”

No doubt, the Bench then rightly advises the High Court in para 59 that, “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.”

While dwelling on human liberty and the role of courts, the Bench then deems it apposite to observe in para 60 that, “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 Parliament (Section 482 of the CrPC, 1973) 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 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.”

Honestly speaking, the Bench then concedes in para 61 that, “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.”

Needless to say, it also very rightly concedes in para 62 that, “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 India (2018) 10 SCC 753: ―

“[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.”

Quite remarkably, the Bench then deems it apposite to lay down in no uncertain terms in para 63 that, “More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand (1977) 4 SCC 308, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is ‘bail, not jail’. 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. 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 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 (Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes‘, (The Wire, 23 June 2015) available at https://thewire.in/economysaharashri-and-the-supremes). 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.

To be sure, it is then stated in para 64 that, “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:

Pendency before the High Courts

Bail Applications            91,56842

Criminal Matters (Writ Petitions, Case/Petitions, Appeals, Revisions and Applications)             12,66,133

Pendency before the District Courts

Bail Applications         1,96,861

Most significantly, the Bench then minces no words to state in para 65 that, “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 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’: “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.”

To sum up, the Apex Court rightly says that the Bombay High Court abdicated its role as protector of constitutional values while dealing with Republic TV Editor-in-Chief Arnab Goswami’s plea in the Anway Naik abetment to suicide case and most rightly lays down that the Districts Courts and High Courts must place the liberty of citizens on the highest pedestal. Justice Dr DY Chandrachud very rightly said that, “Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed.” It also certainly merits no reiteration that all the District Courts and also all the High Courts must always adhere to what has been so laudably and learnedly laid down by the two Judge Bench of Apex Court comprising of Justice Dr DY Chandrachud and Justice Indira Banerjee in this high profile case! There can certainly be no denying or disputing it!

Sanjeev Sirohi

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