In the order refusing interim bail to Republic TV anchor Arnab Goswami, the Bombay High Court observed that the further investigation started by Raigad police in the Anvay Naik suicide case "cannot be termed as illegal and without seeking permission of the Magistrate", legal news website LiveLaw.in has reported.
A division bench of Justices SS Shinde and MS Karnik rejected the arguments raised by Goswami's lawyers - Senior Advocates Harish Salve and Abad Ponda - that the police action against him was illegal as they could not have suo moto revived the investigation after the Magistrate had accepted closure report in the case in 2019.
Referring to SC precedents, the division bench stated that "the law does not mandate taking prior permission of Magistrate for further investigation".Carrying out further investigation even after filing of chargesheet, is a statutory right of the police, the bench further observed.The order placed considerable reliance on the submissions made by Senior Advocate Amit Desai regarding the differences between 'Asummary', 'B summary' and 'C summary reports' and also regarding the power of the State Government to direct further investigation.
Desai had explained that 'A Summary report' is filed in cases where offence is made out but investigation could not trace out the evidence or the accused. On the other hand, 'B' and 'C' summary reports are filed after the completion of investigation when the allegations are found to be false or the registration of FIR is found to be on the basis of mistaken facts.
The 'A summary' report filed by the police in the Anvay Naik suicide case in 2019 meant that investigation was incomplete, Desai had submitted. He had added that the acceptance of the same by the Magistrate does not mean that the case has been closed.
Accepting these arguments at the face value, the bench noted that "there is no manner of doubt in our minds that the state government can always direct a further investigation to the concerned police officers, as done in the present case".
In this regard, reference was made to Section 4 of the Bombay Police Act 1951 which says that "the Superintendence of the Police Force throughout the State of Maharashtra vests in and is exercisable by the State Government". Section 36 of the Code of Criminal Procedure was also referred to support the conclusion.
The bench noted that the police had intimated the jurisdictional Magistrate about the revival of the investigation in the case, following the complaint made to the Home Minister by the widow and daughter of Anvay Naik - Akshata Naik and Adnya Naik. Thereafter, even the statements are recorded under section 164 of the Code of Criminal Procedure after obtaining permission from Chief Judicial Magistrate.
"We find that before carrying out the said investigation, the Magistrate was intimated about the further investigation. Thereafter, even the statements are recorded under section 164 of the Code of Criminal Procedure after obtaining permission from Chief Judicial Magistrate. In our opinion, the further investigation cannot be termed as illegal and without seeking permission of the Magistrate. The same is in consonance with the power conferred by section 173 (8) of Code of Criminal Procedure," the bench noted in paragraph 59 of the order.
Victims' rights also equally important
The bench further noted that the Magistrate had failed to issue notice to the complainant while accepting the 'A Summary' report, overlooking the statutory right of the complainant/victim.
"The fact that the Magistrate did not give notice and opportunity to the first informant to file a protest petition before accepting the report, goes to the root of the matter. Therefore, the continuous persuasion of the State Government by the informant for redressal of her grievance since her two family members had committed suicide, and in the aforesaid background, the concerned Investigating Officer, after intimating the
Magistrate, commences the further investigation, cannot be said to be irregular or illegal by any stretch of imagination. The victim's rights are equally important like the rights of the accused," the bench held in paragraph 64 of the order.
The bench took note of the submissions made by Senior Advocate Shirish Gupte for the complainant that she got to know about the closure report almost a year later from Twitter.
The informant's prayer for further investigation could not have been brushed aside by the respondent state and its officials, when as per the allegations in the FIR, two of her family members committed suicide due to the alleged acts of the accused, observed the bench.
The Court further held that it cannot consider the submissions of Senior Advocate Harish Salve that the FIR does not disclose any offences agianst Goswami at present as the investigation is in progress. The Court has posted the writ petition for further hearing on December 10.
The Court dismissed the interim application seeking bail observing that the petitioner has available to himself the alternate remedy of regular bail under Section 439 of the Code of Criminal Procedure.
While dismissing the application, the bench clarified that its observations are prima facie in nature and confined to the adjudication of the present Interim Application only.
The lower court should consider the regular bail application without being influenced by the observations in the order, the bench further clarified.
Goswami was arrested from his Mumbai residence by the Raigad police on the morning of November 4 in relation to the death of Naik, who had left a suicide note alleging that the Republic TV chief had owed him Rs 83 lakhs. The suicide note had mentioned the names of two others too.
The Chief Judicial Magistrate of Alibag remanded Goswami to 14 days judicial custody on November 4 night, after refusing to remand him to police custody.
Following that, Goswami filed habeas corpus writ petition in the High Court challenging his arrest and custody. Ahead of the High Court's rejection of interim bail, Goswami moved the Sessions Court Alibag seeking regular bail, which will be considered today.
The Sessions Court is also hearing the revision petition filed by the police challenging the CJM's refusal of police custody.
