Duty Of Court To Protect Personal Liberty : Karnataka HC

It is most refreshing, most rejoicing and most rejuvenating to learn that the Karnataka High Court in a latest, landmark and laudable judgment titled Mr. Rakesh Shetty vs. 1. State of Karnataka, 2. Chandrakanth Ramalingam in Criminal Petition No. 5445/2020 has cited the recent extremely laudable order passed by the Supreme Court Bench of Justice Dr DY Chandrachud and Justice Indira Banerjee in Arnab Goswami’s case to grant anticipatory bail to Rakesh Shetty, Managing Director and Editor of Power TV in an alleged case of extortion. The extortion case was registered by the Bengaluru police against Rakesh Shetty after his channel ran a series of reports raising corruption allegations against the family of the Karnataka Chief Minister, BS Yedyurappa. Bail was granted by Karnataka High Court to Rakesh.

To start with, the ball is set rolling by first and foremost pointing in para 1 that, “The present petition is filed by accused No.1 under Section 438 of Cr.P.C. to enlarge him on anticipatory bail in Crime No.135/20 of K.P.Agrahara Police Station, Bengaluru, for the offences punishable under Section 506, 120B, 465, 384, 419 of IPC.”

While elaborating on the facts of the case, it is then observed in para 3 that, “The brief facts of the case are that petitioner accused No.1 is the Managing Director of Power TV News Channel. Complaint’s Company is engaged in construction activities and has obtained tenders from various Departments of the State and Central Governments and BDA. In respect of four different contracts of BDA, an amount of Rs.140 Crores was due to the complainant. It is further alleged that in the month of June, 2020, petitioner-accused No.1 called the complainant and asked him to meet him in his office at Mathikere. Accordingly, the complainant went and met the petitioner-accused No.1 and the complainant informed the petitioner-accused No.1 that he wants to put up an advertisement hoarding at Yelahanka at A.P. Border Troll Road which his Company has developed. While discussing, petitioner-accused No.1 also informed the complainant that he is very close to Mr. Amit Shah, the Hon’ble Minister of Home Affairs, Government of India and he is in touch with him on regular basis. He also claimed that he could help him in getting any work done either from State or Central Governments. It is further alleged in the complaint that the complainant was in constant touch with the petitioner-accused No.1 and during 4th week of June, 2020 he was persuaded to discuss with him about a tender floated by New Mangalore Port Trust in respect of construction of break water for fishing harbor at Kulai and the value of the work was around Rs.100 Crores and tender got notified on 24.9.2019. After coming to know the said information, petitioner-accused No.1 called one Mr.Parithosh Bala, Chief Engineer (Civil) New Mangalore Port Trust and spoke to him identifying himself as an Officer working in the office of Mr.Amit Shah, Hon’ble Home Minister and further told him that he has been directed by Hon’ble Home Minister to inform him that the tender submitted by M/s. Ramalingam Construction Company must be approved and granted in its favour. Subsequently, complainant after seeing, was astonished and taken aback after receiving the letter dated 29.6.2020 from New Mangalore Port Trust regarding disqualifying him from the tender process on the ground that he tried to influence the tender awarding authority.”

Going ahead, it is then pointed out in para 4 that, “It is further alleged that the petitioner-accused No.1 forced the complainant to divulge and give him the details of pending bills from various Departments of Government of Karnataka and he kept on pressurizing him to give every work details assuring him that he would personally get them cleared. He also informed the complainant that he is aware of the pending bills of the complainant’s Company to the tune of Rs.140 Crores payable from BDA and he would ensure the said payment be cleared by the BDA and he should be paid 5% on the said amount.”

Not stopping here, it is then envisaged in para 5 that, “It is further alleged that on 26.8.2020 BDA has cleared Rs.7.79 Crores out of pending bill of Rs.140 Crores to the Company of the complainant. Petitioner-accused No.1 contacted the complainant and insisted him by saying that the said amount has been cleared from BDA and he is entitled to get 5% of the amount as his commission. Complainant refused to pay as he was knowing the fact that the said amount was cleared by the BDA in a routine manner. It is further alleged that the petitioner-accused No.1 was in continuous touch with the complainant on regular basis and induced him to speak in a tutored manner by taking the names of several persons in the Government and further assured that if he speaks the way he wants, he would get all his works cleared from the Government and hearing that the complainant got carried away and tutored the line of tutored conversation without being aware as to for what reason he wanted to take the names and in what manner it would help him. He further alleged that none of the conversation made by him with the petitioner-accused No.1 is true. Later, the complainant started suspicious of the actual intent of the petitioner-accused No.1. It is further alleged that the petitioner-accused No.1 asked 5% of the amount and he also threatened that he will tarnish his reputation by misusing the tutored line and false statement which has been spoken against certain individuals. Because of the threat he paid an amount of Rs.25 lakhs in cash on 22.8.2020. It is further alleged that on 2.9.2020 he was surprised to watch a programme telecasted in the Power TV Channel of the petitioner-accused No.1 wherein he himself was a part of panel discussion and the petitioner-accused No.1 was making several false allegations referring to the work undertaken by his Company. Subsequently, many episodes were also aired/telecasted by the petitioner-accused No.1 through his Channel relating to the work done by the Company of the complainant linked with some politicians and his family members who had no connection with the work executed by the Company of the complainant. The petitioner-accused No.1 also referred to several conversations held between them. The petitioner has used tutored conversations which were extracted from him falsely implicating others to suit his needs to achieve his oblique motive. It is further alleged that the petitioner-accused No.1 used to extract money from others by falsely implicating them in the conversation. It is further alleged that he has edited the conversation in electronic form to suit his stories and thereby committed the offence. On the basis of the said allegations, a case has been registered.”

Be it noted, it is then observed in para 20 that, “It is the duty of the Court to exercise its jurisdiction in proper way to protect the personal liberty of a citizen. If the Courts do not interfere, we are troubling the path on destruction. This proposition of law has been laid down by the Hon’ble Apex Court in its recent decision in the case of Arnab Manoranjan Goswami Vs. The State of Maharashtra & Others, decided on 11.11.2020.”

Quite remarkably, it is then held in para 21 that, “It is well settled proposition of law that while considering the bail application, the Court cannot hold a mini trial. If at all because of the intervention of the petitioner-accused No.1, the tendering authority has disqualified the complainant from the tender process, then under such circumstances, some civil remedy is also available for the complainant to proceed in accordance with law, if he is advised to do so. These are all serious issues which are to be considered and appreciated during the course of trial. If the conduct of the petitioner and complainant is seen, complainant met the petitioner accused No.1 after coming to know about tender application filed by the complainant to New Mangalore Port Trust by calling him over phone. The petitioner-accused No.1 called the Chief Engineer of New Mangalore Port Trust identifying himself as an Officer working in the office of Hon’ble Home Minister, Government of India for approval. At that time, the complainant neither resisted the petitioner-accused No.1 nor he immediately filed the complaint against him for impersonation. Be that as it may, when petitioner-accused No.1 induced the complainant to speak in a tutored manner taking the names of several persons in the Government to get his work done from the Government which he wants to carry and spoke in a tutored manner, creates a doubt. Complainant being a responsible person and Director of a big construction company cannot be expected to speak in a tutored manner. It is true that autobiography and antecedents of the accused must be seen while considering the bail application, but at the same time autobiography and antecedents of the complainant must also be seen. Court has to put the facts of the case of the complainant and accused into a scale and weigh it to ascertain the truth. Complainant who is before the Court has also not come up with clean hands and it appears that all is not well. In that light, I am of the considered opinion that in order to ascertain the truth, a fair and unbiased investigation is necessary. In that light, by imposing some stringent conditions, if the petitioner-accused No.1 is ordered to be released on anticipatory bail, it would serve both the ends.”

Finally, it is then held that, “Accordingly, the petition is allowed and the petitioner-accused No.1 is granted anticipatory bail. In the event of his arrest in Crime No.135/20 of K.P.Agrahara Police Station, Bengaluru, for the offences punishable under Section 506, 120B, 465, 384, 419 of IPC, subject to the following conditions:-

i) Petitioner-accused No.1, namely Rakesh Shetty, shall execute a personal bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for the like sum to the satisfaction of the Investigating Officer.

ii) He shall surrender before the Investigating Officer within twenty days from today, failing with this order shall automatically stand cancelled.

iii) He shall co-operate with the Investigation as and when required.

iv) He shall not tamper with the prosecution evidence in any manner.

v) He shall mark his attendance once in fifteen days between 10.00 a.m. and 5.00 p.m. before the jurisdictional police, till the charge sheet is filed.

vi) He shall not leave the jurisdiction of the trial Court without prior permission.

vii) He shall not indulge in similar type of criminal activities in future.

viii) If he violates any one of the conditions, the bail is liable to be cancelled.”

In essence, this notable ruling very rightly complies with what was laid down by the Apex Court in Arnab Goswami’s case. In Arnab’s case, Justice Dr DY Chandrachud had minced no words to say that, “There has to be a message to High Courts – Please exercise your jurisdiction to uphold personal liberty. We are seeing case after case. HCs are failing to exercise jurisdiction.” It is really good to see that the Karnataka High Court has also observed that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India which pertains to personal liberty and it shall be given a liberal interpretation.

 

Sanjeev Sirohi

C Modifies Telangana HC’s Order Banning Firecrackers In The State In Line With NGT’s Directions Of November 9

It is quite refreshing, reassuring and remarkable that in a latest, landmark and laudable judgment titled The Telangana Fire Works Dealers Association vs. P Indra Prakash & Ors in Special Leave Petition (Civil) Diary Nos. 24650/2020 delivered on November 13, 2020 has modified the order of the Telangana High Court which imposed a complete and immediate ban on the sale and use of firecrackers across the state during Diwali to fall in line with the directions imposed by the National Green Tribunal on November 9. It must be revealed here that a vacation Bench of Apex Court comprising of Justices AM Khanwilkar and Sanjiv Khanna issued notice on the petition and stated that the NGT guidelines applied to the State of Telangana and that, it shall comply with the directions in letter and spirit. Very rightly so!

We all know that pollution is crossing all limits in our country especially in Delhi and adjoining regions. It may be recalled that the National Green Tribunal on November 9 had imposed a total ban on sale/use of all kinds of firecrackers in Delhi NCR from the midnight of November 9-10, 2020 to the midnight of November 10. The direction was passed by a Bench headed by National Green Tribunal (NGT) Chairperson – Justice Adarsh Kumar Goel in a batch of petitions seeking remedial action against pollution by use of firecrackers in the NCR.

At the outset, the ball is set rolling by first and foremost observing that, “Permission to file special leave petition is granted. Heard learned counsel for the petitioner. Issue notice. Dasti, in addition, is permitted.”

What next follows is that it is then stated that, “List this matter on 16th November, 2020 before an appropriate Bench.”

Going forward, the Bench then henceforth goes on to put forth that, “In the meantime, the impugned judgment and order of the High Court stands modified and is brought in line with the directions issued by the National Green Tribunal vide comprehensive order dated 09th November, 2020 in O.A. No. 249 of 2020, which applies even to the State of Telangana on all fours. For, no reason much less special reason is noted in the impugned order for departing therefrom.”

Most remarkably and most significantly, the Bench then minces no words to convey in simple, suave and straight language that, “All concerned in the State of Telangana must comply with the stated directions of the Tribunal in its letter and spirit, which is reproduced hereunder for the sake of convenience:-

i.               There will be total ban against sale or use of all kinds of fire crackers in the NCR from midnight of November, 09-10, 2020 to the midnight of November 30 – December 1, 2020 to be reviewed thereafter.

ii.            Direction (i) will also apply to all cities/towns in the country where the average of ambient air quality during November (as per available data of last year) fall under ‘poor’ and above category.

iii.          The cities/towns where air quality is ‘moderate’ or below, only green crackers be sold and the timings for use and bursting of crackers be restricted to two hours during festivals, like Diwali, Chatt, New Year/Christmas Eve etc., as may be specified by the concerned State. This direction is on pattern of direction of the Hon’ble Supreme Court in (2019) 13 SCC 523 which we are applying to areas moderately polluted or below air quality due to aggravated effect during Covid-19, as already noted. If nothing is specified by the State, timing will be 8 to 10 pm on Diwali and Gurupurb, 6 am to 8 am on Chatt and 11.55 pm to 12.30 am during Christmas and New Year Eve (which have yet to come and do not fall in November but if ban continues) and not otherwise.

iv.          At other places, ban/restrictions are optional for the authorities but if there are more stringent measures under orders of the authorities, the same shall prevail.

v.             All States/UTs/PCBs/PCCs may initiate special drives to contain air pollution from all sources in view of potential aggravation of Covid-19.

vi.          The Chief Secretaries and DGPs of all the States/UTs may issue and circulate an appropriate order in above terms with appropriate enforcement guidelines to all the District Magistrates and Superintendents of Police, PCBs/PCCs.

vii.       The CPCB and the State PCBs/PCCs may regularly monitor the air quality during this period which may be uploaded on their respective websites. CPCB may compile information on the subject, including the status of compliance of this order from all the States/UTs and file a consolidated report with data compiled till filing of report, before the next date by e-mail at judicial-ngt@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.”

Finally, it is then held that, “We are conscious of the fact that the respondent(s) are not represented today nor they have been served but in the peculiar situation and urgency involved, as aforesaid, the impugned order stands modified to bring in line with the stated directions issued by the National Green Tribunal.”

It may be recalled that recently the Supreme Court had also refused to interfere with a similar order passed by the Calcutta High Court order banning fireworks during Diwali, Kali Puja, Durga puja celebrations in West Bengal. A Bench of Apex Court headed by Justice Dr DY Chandrachud observed that preservation of life was more important during the pandemic than the celebration of festivals. What Justice Dr DY Chandrachud has said is nothing but hundred percent right!

To conclude, we all are now fully aware as to how much pollution is caused by firecrackers that we all normally burst without thinking of its hazardous consequences on our own body. But now as pollution is crossing all limits, it is high time we wake up and take this menace of pollution most seriously!  Supreme Court and NGT are directing banning of firecrackers for our good only. It damages our lungs beyond repair. So it is our duty to comply with them unconditionally and completely! There can certainly be no denying or disputing it!

Sanjeev Sirohi,

Justice Dr DY Chandrachud Not Happy With Bombay HC Ruling on Arnab Goswami

It is no ordinary matter if one of the most reputed, most distinguished and most competent Judge of a court which is none other than the Supreme Court expresses its most serious reservations on the manner in which Bombay High Court handled the Arnab Goswami case. A vacation Bench comprising of Justices Dr DY Chandrachud and Indira Banerjee of the Supreme Court is currently hearing the petition filed by Republic TV anchor Arnab Goswami challenging the November 9, 2020 order of the Bombay High Court which denied him interim bail in the Anvay Naik abetment to suicide case. During the hearing, Justice Chandrachud while wondering if the offence of abetment to suicide can be invoked for mere non-payment of money, made strong oral observations against the custody of Arnab Goswami and the denial of interim relief by the Bombay High Court. The final judgment is yet to come but Justice Chandrachud has made his commitment for personal liberty known to one and all by his strong observations. What has happened with Arnab Goswami cannot be justified under any circumstances!

Truth be told, Justice Dr DY Chandrachud then minces no words to hold that, “To make out a case of abetment, there has to be active incitement and encouragement. If money is owed to a person, is that a case of abetment to suicide? A owes money to B. B due to financial stress commit suicide. Will it attract offence under Section 306 IPC? We are dealing with personal liberty here and because he was owed money, Naik committed suicide due to financial stress. Is this a case for custodial interrogation?”

On similar lines, Harish Salve who is one of the most eminent, senior and distinguished lawyer of the Supreme Court of India and former Solicitor General also vociferously told the court in most eloquent, effective and elegant language that  the case against Arnab Goswami did not stand the test of basic ingredients required to establish an offence of abetment to suicide under Section 306 IPC. Salve very rightly asked and wondered that, “Last month a man in Maharashtra committed suicide saying the Chief Minister failed to pay salary! What you do? Arrest the Chief Minister?” Salve is hundred percent right on this! If Uddhav Thackeray can justify arrest of Arnab Goswami on this stupid ground that someone has named him then he himself should also come forward and go to the same jail where Arnab Goswami is lodged when someone names him! What nonsense is this!

Needless to say, this alone explains why Justice Dr DY Chandrachud even remarked that, “It will be a travesty of justice if bail is not granted while FIR is pending.” Harish Salve too rightly questioned that, “Do you arrest a man in a three-year-old FIR and put him in jail on a Diwali week and then transfer him to Taloja jail with hardened criminals?” This is most disgraceful and what is worse is that Arnab was arrested as if he was a dreaded terrorist or a criminal and he and also his son and family members were assaulted by Bombay Police as he pointed out while talking to the press!

It cannot be overlooked that Justice Dr DY Chandrachud even went on to remark that, “It will be a travesty of justice if bail is not granted while FIR is pending.” He also very rightly posed the billion dollar question that, “If we as a constitutional court do not lay down law and protect liberty then who will?” All the High Courts Judges and also the lower courts Judges must pay attention to what Justice Chandrachud has observed so eloquently in this high profile case!

Full attention must be paid now to what Justice Dr DY Chandrachud then also noted that, “The High Court did not deal with the aspect if the allegations constituted the offence of abetment to suicide under Section 306 of the Indian Penal Code. But the HC writes tones and tones of pages on why habeas is not maintainable even after prayer was given up.”

What is even more laudable is that Justice Chandrachud then minces no words to state in simple, straight and suave language that, “If this court does not interfere today, we are travelling on the path of destruction. Forget this man (Goswami). You may not like his ideology. Left to myself, I will not watch his channel. Keep aside everything. If this is what our state governments are going to do to people who are to be nailed, then the Supreme Court has to intervene. There has to be a message to HCs – Please exercise your jurisdiction to uphold personal liberty. We are seeing case after case. HCs are failing to exercise jurisdiction. People are in jail for tweets!” All the High Courts of India must pay heed to what Justice Chandrachud has held so aptly and appropriately which has to be applauded! Justice Chandrachud also referred to a recent case where the Supreme Court stayed the summons issued by the West Bengal police to a woman in Delhi to appear in Kolkata for tweeting against the State Government.

It is high time and the Maharashtra State Government also must pay heed to what Justice Dr DY Chandrachud has remarked that, “Our democracy is extraordinarily strong and resilient. Governments should ignore tweets and move on. This is not the basis on which elections are fought. If you don’t like a channel then don’t watch it.” He also rightly remarked that, “Technicality cannot be a ground to deny someone personal liberty. This is not a case of terrorism.” Why about more than 20 police armed with AK 47 went to his house? Is he a terrorist? Why his employees are arrested and handcuffed as if they are terrorists? Why Arnab was not allowed to wear his shoes and dragged by his hair and his son assaulted as has been alleged? All this speaks very poorly on the conduct of Mumbai police for which there is every reason to feel alarmed about!

What Justice Dr DY Chandrachud has observed so commendably in Arnab Goswami’s case is brilliant and must be commended in no uncertain terms. He has certainly stated nothing but the blunt truth! This witchhunting of Arnab just because he carries some news report which are not to the liking of Maharashtra State Government as we saw in case of Palghar sadhu mob lynching case where two sadhus were beaten and stoned to death right in front of police or the Sushant Singh Rajput case or many other such cases must stop forthwith!

Harish Salve too is hundred percent right that mere non-payment of dues cannot amount to abetment of suicide! Salve is also right that the Magistrate should have released Arnab Goswami on bond on the first day of production itself as no offence was made out against him! The judgment is yet to be delivered finally but the writing on the wall is ostensibly clear from what Justice Dr DY Chandrachud has said so aptly till now which we have already dwelt in considerable detail! There can certainly be no denying or disputing it!