Hours before the HC pronouncement at 3pm, Goswami on Monday filed for bail before the Alibaug sessions court. The HC directed the trial court to decide on the plea within four days, uninfluenced by its observations in the case.
Goswami and two others — Feroze Shaikh and Neetish Sarda — were arrested by Alibaug police on November 4 in connection with the suicide of architect-interior designer Anvay Naik and his mother in 2018 over alleged non-payment of dues by companies of the accused.
“No case is made out for release of the petitioner under extraordinary jurisdiction,” said the HC bench of Justices SS Shinde and MS Karnik.
“In our opinion, the petitioner (Arnab) has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of applications, we had made it clear that if the petitioner, if so advised, applies for regular bail under section 439 of the Code of Criminal Procedure before the concerned court, then we have directed the court to decide the said application within four days of filing of the same,” the HC said.
The HC in its 56-page order said, “In our opinion, the petitioner (Arnab) has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of Applications, we had made it clear that if the petitioner, if so advised, to apply for regular bail undersection 439 of the Code of Criminal Procedure before the concerned Court,then, in that case, we have directed the concerned Court to decide the said application within four days from filing of the same.”
Also HC in its order said: Merely because the Magistrate has accepted the “A” summarysubmitted by the Investigating Officer, that would not mean and preclude theconcerned Investigating Officer to invoke the provisions of section 173(8) ofCode of Criminal Procedure to commence further investigation after givingintimation to the jurisdictional Magistrate.
“The victim’s rights are equally important like the rights of the accused. We cannot accept the contention of the petitioner that there cannot be further investigation when the order passed by the Magistrate accepting the “A” summary was without notice and without giving an opportunity to the informant for filing the protest petition,” observed the HC.
The HC also rejected the plea for interim bail filed by Neetish Sarda as well as the plea for interim release filed by Firoze Shaikh. It said they can file for bail in the lower court which can take a decision on merit without being influenced by the high court’s observations
The trio’s bail plea will be heard on Tuesday by the sessions court. The HC also noted state counsel Amit Desai’s submissions that the state would not delay the hearing of the bail plea and ensure its expeditious disposal.
Alibaug chief judicial magistrate Sunayna Pingale had in a late night order on November 4 rejected the police custody plea of Goswami and remanded him in judicial custody for 14 days.
The HC noted that Goswami’s petition and application for interim protection proceeds on the premise that he is illegally detained. However, when Goswami filed for interim release, he “was in judicial custody as it is averred by the petitioner himself in the application.”
“The victim’s rights are equally important like the rights of the accused. We cannot accept the contention of the petitioner that there cannot be further investigation when the order passed by the magistrate accepting the ‘A’ summary was without notice and without giving an opportunity to the informant for filing the protest petition,” the bench said.
Last week, the police challenged the rejection in a revision application before the Alibaug sessions court which is to hear the matter. The police had said that Goswami’s custody is essential to probe the matter further.
The HC bench, after a special day-long special hearing via video-conferencing, had reserved its order on the pleas filed by the accused.
On Saturday, senior counsel Amit Desai and public prosecutor Deepak Thakre for the Maharashtra government in Goswami’s case opposed his plea for interim release.
The HC had on Saturday, however, granted them liberty to file for bail before sessions pending the pronouncement. The HC had said on Saturday that in such a case, the trial court must decide on the pleas within four days after hearing all sides. Similarly, the HC said even Sarda, 26, was not precluded from seeking bail before the sessions court.
Goswami, 46, had filed a habeas corpus petition alleging that his arrest was “illegal” and sought orders to quash the case and proceedings and to stay further probe.
He also invoked the wide plenary powers of the HC under Article 226 of the Constitution to seek justice when fundamental rights are flouted. His counsels Harish Salve and Aabad Ponda said his right to life and free speech were violated by the “illegal arrest” and said the authorities were acting with “malice”. Salve, cited SC judgments to stress that the HC had all the powers and could direct Goswami’s release even if a revision plea was pending before the sessions court.
Special counsel for the Maharashtra government Desai had said the “question of arrest cannot be dealt with at this stage.”. Desai said Goswami’s habeas corpus plea was no maintainable since he is now in judicial custody through a “lawful order” passed by the Alibaug CJM after seeing the police “case diary” which details the probe that has been on, with witness statements recorded.
Desai had cited various apex court judgments to submit that the “the HC cannot intervene under its extraordinary powers under Article 226 and give a go-by to the established procedures and provisions of the criminal law which allows for a remedy to file for bail before the trial court.”
The HC also observed that it would not want to “undermine the authority of the sessions court which is empowered to hear regular bail plea.”
The HC cannot change the entire hierarchy under CrPC, “especially when for reasons unknown he withdrew the bail plea filed before the magistrate.” He said if the HC grants interim bail, it would “open floodgates to an already overburdened court” and that everyone after arrest will seek quashing and release on grounds of fundamental rights.
“He said investigation cannot be brought to a standstill … probe is on as state felt the need for further probe,” Desai had submitted, adding, “Power of state to direct investigation is distinct from power of court.”
Desai had also stressed that an ‘A’ summary (true, but undetected) closure has to be treated differently than B summary (false case) or C summary (neither true nor false). He pointed out that there is challenge to the fact that it was categorized an ‘A’ summary which only means that investigation is incomplete or inconclusive and hence arguments of Goswami’s counsels that there is a need for a “court nod for further probe is wrong”.
Besides, said Desai, the HC has to “consider fundamental rights of a victim too for a fair probe, rights of an accused and victim under right to equality and right to life are equal.”
Senior counsel Shirish Gupte for Adnya Naik also said, “Matter was high-handly handled by the police earlier and to release him now under extraordinary powers… would be injustice to the victims.” He had added, “it was shocking that neither the police nor even the magistrate had thought it fit to inform the victim of the closure report being filed when since 1985 the law has been well settled by the Supreme Court that there are three parties to a criminal proceedings, the state, accused and victim.”
Salve, in his submission, said that irrespective of the right of an accused to seek bail under criminal procedure code, his fundamental right to life and liberty stays intact and the SC has held that the HC has powers to grant interim bail so that the right to life “which is non negotiable” does not get defeated “even for a day.”
The quashing petition filed by Goswami as well as the petition for transfer of probe and challenge to closure of her father’s suicide abetment case, by Adnya Naik, will next be heard on December 10, before the HC.