No bail for Arnab Goswami, Bombay HC reserves order on interim plea

The Court will clarify that the pendency of the case is not an impediment for the petitioners to apply for bail before sessions court

Mumbai: The Bombay High Court has reserved its order in the habeas corpus petition filed by Republic TV Chief Arnab Goswami against his arrest and remand in the 2018 abetment to suicide case.

In a special hearing held today, a division bench of Justices SS Shinde and MS Karnik refused to pass an immediate order for interim relief. After holding a six-hour long hearing today, it said,

“We can’t pass order today. It is already six. Meanwhile we will clarify that pendency of the petition will not bar the petitioner from approaching the sessions court for bail and if such an application is filed, it should be decided within 4 days.”

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However, when the Petitioner’s counsel, Senior Advocate Harish Salve, insisted that an ad-interim relief be granted, Justice Shinde indicated that the Court will reserve orders and will pronounce them some day in coming week. He assured that the court will pronounce the order as early as possible.

“The Court will clarify that the pendency of the case is not an impediment for the petitioners to apply for bail before sessions court,” Justice Shinde said.

The Bench was hearing the Habeas Corpus petition and a bail application filed by Goswami seeking interim release. It also heard Advocates Vijay Agarwal and Nikhil Mengde for a co-accused in the matter, MS Shaikh and Praveen Rajesh Singh, respectively.

Plea of Habeas Corpus against a Remand order

The State Government had disputed the maintainability of the petitions. Advocate Amit Desai submitted that habeas petitions are not maintainable for bail. He further pointed out that habeas is not maintainable against judicial order of remand.

“No writ of habeas corpus can be issued if a person is in custody in pursuance of a judicial order… Floodgates of the judicial system, which is already creaking, will creak further, if such applications are entertained,” Desai argued.

“They have their alternative remedies in law. We are not going to come in the way of their remedies available in law,” he said while stating that the Petitioners should have approached the Magistrate seeking regular bail.

Reliance was placed on State of Maharashtra & Ors. v. Tasneem Rizwan Siddiquee, 2018 (9) SCC 745.

“Arnab Goswami is under custody pursuant to November 4 order of Magistrate. The jurisdiction of Magistrate is not challenged. That being a judicial order, this particular petition will not survive.

Arnab Goswami is not under “unlawful custody”. He is under custody based on a judicial order” Desai argued.

Desai further told the Court that Goswami had originally filed a bail application before the Magistrate but the same was withdrawn, for no fault of the State, saying the Magistrate did not give a returnable time.

“The petitioners have chosen to withdraw their bail applications. That is not the fault of the State. We are not going to seek long adjournments. We are also conscious that personal liberties of citizens are involved,” he said subject to advance service of bail application upon them.

He further pointed out that the Petitioner’s entire case is based on the allegation of illegal arrest and they have not raised any issue of “illegal detention” as they have not challenged the remand order.

“Arrest happens before a person is produced before the Magistrate. The moment your “illegal arrest” has resulted in a judicial remand, the question of arrest is not relevant later,” Desai said.

He added,

“Issue of arrest is distinct from issue of custody. Questions of quashing FIR for not disclosing offence, question of illegal arrest and question of detention are different. The question of FIR not disclosing offence not relevant for interim release as they have not challenged the judicial order of remand.”

Salve on the other hand, appearing for Arnab Goswami, referred to the Supreme Court’s verdict in Jagish Arora v. State of UP, where the Supreme Court ordered the release of journalist Prashant Kanojia from custody last year.

“The very same argument that habeas was not maintainable was raised there. The Supreme Court did not accept it and ordered the relaese of Prashant Kanojia who was remanded to custody,” Salve told the Court.

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