ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA & Ors.

Judgment

11 S.C.R. 896 ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA & ORS. Criminal Appeal No. 742 of 2020 NOVEMBER 27, 2020 [DR. DHANANJAYA Y CHANDRACHUD AND INDIRA BANERJEE, JJ.] Constitution of India – Arts. 226 and 227 – Code of Criminal Procedure, 1973 – s.482 and s.439 – Penal Code, 1860 – s.306 and s. 34 – The appellant was arrested on 04.11.2020 in connection with FIR registered u/s. 306 and s.34 of the IPC – It was alleged that the appellant had not paid an amount due to the deceased for the work which was carried out by him, as a result of which he was under mental pressure and he committed suicide by hanging – In the suicide note three individuals were held responsible including the appellant – The appellant invoked jurisdiction of the High Court u/ Arts. 226/227 of the Constitution and s.482 of the Cr.P.C. and sought quashing of FIR along with other reliefs – Pending the disposal of the petition, the appellant filed an application and sought his release from the judicial custody – The High Court held that since the appellant was in judicial custody, it was open to him avail of the remedy of bail u/s. 439 of the Cr.P.C. – 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 u/s. 306 of the IPC – The appellant filed an appeal before the Supreme Court aggrieved by the denial of his interim prayer for the grant of bail – On 11.11.2020, the Supreme Court, after reserving the judgment, ordered and directed the release of all the three individuals including appellant on bail pending the disposal of the proceedings before the High Court – Held: According to the spouse of the deceased, her husband was over the previous two years ‘having pressure as he did not receive the money of work carried out by him’ – The deceased left behind a suicide note stating that his “money is stuck and following owners of respective companies are not paying our legitimate dues” – The consistent line of authority of Supreme Court lays down that in order to bring a case within the 896 ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA purview of s.306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide – Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution – In the instant case, prima facie, on the application of test laid down by the Supreme Court it cannot be said that the appellant was guilty of having abetted suicide within the meaning of s.306 of the IPC – The High Court in failing to notice the contents of FIR and to make a prima facie evaluation abdicated its role, functions and jurisdiction when seized of petition u/s. 482 of Cr.P.C.– As a consequence of its failure to perform its function u/s. 482 Cr.P.C., the High Court disabled itself from exercising its jurisdiction u/Art.226 to consider appellant’s application for bail – While considering application u/Art. 226, the High Court must be circumspect in exercising its power on the basis of the facts of each case – However, the High court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power – Therefore, the interim protection granted to the accused on 11.11.2020 continue to remain in operation pending the disposal of the proceedings before the High Court. Constitution of India – Art.226 – Power to grant interim bail – The appellant was arrested in connection with FIR registered u/s. 306 and s.34 of the IPC – Appellant filed petition u/Art.226/227 of the Constitution and u/s.482 of the Cr.P.C. for quashing the FIR and the arrest memo – Thereafter, the appellant filed application for interim bail – The High Court declined 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 – The High Court further declined to allow the appellant’s prayer for interim bail and relegated him to the remedy u/s.439 of Cr.P.C. – Aggrieved, the appellant filed an appeal before the Supreme Court – It was submitted by the respondents that procedural hierarchy of Courts in matters concerning the grant of bail needs to be respected – Held: The respondents are 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 898 SUPREME COURT REPORTS [2020] 11 S.C.R. 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 Art. 226 – Where the High Court has failed to do so, Supreme 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. Words and Phrases – “Human Liberty and the role of the Courts” – discussed. Disposing the appeals, the Court HELD: 1. The FIR recites that the spouse of the informant had a company carrying on the business of architecture, interior design and engineering consultancy. According to the informant, her husband was over the previous two years “having pressure as he did not receive the money of work carried out by him”. The FIR recites that the deceased had called at the office of the appellant and spoken to his accountant for the payment of money. Apart from the above statements, it has been stated that the deceased left behind a suicide note stating that his “money is stuck and following owners of respective companies are not paying our legitimate dues”. Prima facie, on the application of the test which has been laid down by this Court in a consistent line of authority, it cannot be said that the appellant was guilty of having abetted the suicide within the meaning of Section 306 of the IPC. These observations, are prima facie at this stage since the High Court is still to take up the petition for quashing. 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. 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. If the High Court were to carry out a prima facie evaluation, it would have A B C D E F G H ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA 899 been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 of the IPC. The failure of the High Court to do so has led it to adopting a position where it left the appellant to pursue his remedies for regular bail under Section 439. 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. [Para 55][939-F-H; 940-A-D]

#2. The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant‘s application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power. [Para 56] [940-D-G]

#3. 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 A B C D E F G H 900 SUPREME COURT REPORTS [2020] 11 S.C.R. A FIR; and (vi) The significant interests of the public or the State and other similar considerations. [Para 57][940-D-H; 941-A-C]

#4. These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs NCT, Delhi; Ram Govind Upadhyay vs Sudarshan Singh; State of UP vs Amarmani Tripathi; Prasanta Kumar Sarkar vs Ashis Chatterjee; Sanjay Chandra vs CBI; P. Chidambaram vs Central Bureau of Investigation. [Para 58][941-D]

#5. 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. [Para 59][941-E-G; 942-A]

#6. 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 B C D E F G H ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA 901 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 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 A B C D E F G H 902 SUPREME COURT REPORTS [2020] 11 S.C.R. 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. [Para 60][942-B-H; 943-A-D]

#7. The respondents 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. [Para 61][943-E-H] Amalendu Pal vs State of West Bengal (2010) 1 SCC 707 : [2009] 15 SCR 836; S S Chheena vs Vijay Kumar Mahajan (2010) 12 SCC 190 : [2010] 9 SCR 1111; Madan Mohan Singh vs State of Gujarat (2010) 8 SCC 629 : [2010] 10 SCR 351; M Arjunan vs State (represented by its Inspector of Police) (2019) 3 SCC 315; Ude Singh and Ors. vs State of Haryana [2019] 9 SCR 703; Rajesh vs State of Haryana (2020) 15 SCC 359; Gurcharan Singh vs State of Punjab (2020) A B C D E F G H ARNAB MANORANJAN GOSWAMI v. THE STATE OF MAHARASHTRA 903