Interim Bail judgement of SC Bombay HC criticized

As has been reported earlier, Arnab Goswami (of Republic TV) was granted interim bail by the Supreme Court of India on November 11 with the Apex Court only making an interim order and reserving its reasoned judgment and findings. On November 27, the Court delivered a 55 pages long judgement giving its reasons and findings for granting interim bail and explaining the reasons for the decision and evaluated arguments of all sides.

What should not be a surprise to many experts, the division bench led by Justice Dr D. Y. Chandrachud did not mince words in dressing down the Bombay High Court for abdicating its constitutional duty to exercise its mind and  powers bestowed on it by the constitution of India.

The Supreme Court has directed all the courts in India, at all levels that they have to ensure that the state authorities are not allowed to use criminal law as a weapon for selective harassment of citizens, in this case Arnab Goswami.

Delivering the judgement speaking through Justices DY Chandrachud the court has said the Bombay High Court should have done a prima facie evaluation of the merits in the FIR against Arnab Goswami before making a decision on his application for interim bail.

“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.

What can only be termed as clear reprimand, the honourable judges said:

“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.”

And commenting on the facts of Arnab Goswami’s case, the judges said:

“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.

“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 meaning of Section 306 of the IPC…”

“…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.”

Although the judgement has been delivered in an application for interim bail, this observation of the Supreme Court clearly binds the Bombay High Court on December 10, when it hears Arnab GOswami’s application for quashing of the FIR which alleges Arnab Goswami was responsible for abetment of Anvay Naik’s suicide in 2018.

“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.

“…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.”

Leaving nothing to chance for future applications in similar matters, the judges have laid down a summarised version of a ‘To Do List’ for the High Courts when next considering similar cases:

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:

  1. The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
  2. Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
  3. The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
  4. The antecedents of and circumstances which are peculiar to the accused;
  5. Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
  6. The significant interests of the public or the State and other similar considerations.

This case will now become a guide for various High Courts in India of what not to do as the Bombay High Court did when making a decision in refusing Arnab Goswami’s application for interim bail.

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