In SC & Bombay HC, Harish Salve's blistering defence details Arnab Goswami's witch-hunt

Republic Media Network Editor-in-Chief Arnab Goswami spent his third night in judicial custody. As the Bombay High Court adjourned the hearing against his illegal arrest to Saturday, Arnab Goswami’s lawyer, senior advocate Harish Salve put forth blistering arguments before the court in both the case pertaining to the illegal arrest in the 2018 abetment to suicide case as well as the privilege motion case against him. 

The 2018 suicide case has been 'reopened' without the court's permission, something that was also noted by the CJM in Alibag who refused the police custody of Arnab Goswami.

READ: 'How Dare He?': SC Issues Maha Assembly Secy Notice On Letter Threatening Arnab Goswami

In Supreme Court, an extraordinary development

After Harish Salve's arguments, the Supreme Court had issued contempt notice to the Secretary of the Maharashtra Legislative Assembly to appear before the Apex Court and show cause as to why proceedings should not be initiated against him for sending a letter to Arnab Goswami intimidating him for approaching the court against the privilege notice issued by the Assembly. The Apex Court said that Arnab cannot be arrested in the breach of privilege case. Taking note of the seriousness of the matter,  Senior Counsel  Arvind Datar, was appointed as  Amicus Curiae to assist the Court in the matter. 

Salve had told the Supreme Court that the letter of the Secretary of the Maharashtra Assembly questioned Arnab for producing the communications of the Speaker and the Privilege Committee before the court as they are confidential in nature.

"I will show my lords something today which will grant Arnab relief," Salve said, reading out the letter by the Secretary of the Assembly, reacting to which the Chief Justice of India asked, "What is this?" Making strong observations while delivering its order, the CJI stated 'How dare he say this, what is Article 32 for?' adding 'We have a serious question on the author of this letter and we find it extremely difficult to overlook this.'

“The intention of the author of the letter seems to be to be to intimidate the petitioner because he approached this court,” the Supreme Court observed, adding, “The above statements are unprecedented and have a tendency to bring the administration of justice into disrepute.”

The 60-page privilege notice against Arnab Goswami was sent after privilege motions were moved against him by Shiv Sena MLAs in both houses in Maharashtra. The notice said that Arnab Goswami had breached the privileges of the Legislative Assembly of Maharashtra alleging that he had passed derogatory remarks against Chief Minister Uddhav Thackeray, and has threatened to jail him if he does not apologise.

Giving the Maharashtra Assembly Secretary two weeks notice to show cause as to why contempt should not be issued against him in terms of Article 129 of the Constitution of India, Chief Justice of India SA Bobde said that in the meanwhile, "petitioner (Arnab Goswami) will not be arrested in pursuance of the present proceedings."

"Cases after cases" were being filed against Arnab Goswami, Harish Salve had argued, pressing for interim relief saying "Constitutional courts have to see the reality, not the smoke screen".

Harish Salve's blistering arguments in Bombay High Court for Arnab Goswami

In the Bombay HC on Friday, Salve highlighted the Alibag Chief Judicial Magistrate's remand order refusing police custody on Wednesday and stated that it in itself was an important point highlighting the ‘illegality’ of the arrest.

QUOTING FROM THE REMAND COPY

“The remand order makes important points about the illegality of arrest and the lack of merits in the allegations against Arnab Goswami. The CJM has stated in the order "it seems that the arrest of the accused (Arnab Goswami) is illegal", he told the honourable judges.

The re-opening of the 2018 abetment to suicide case had already raised eyebrows amid the witch-hunt led by the Mumbai Police. The CJM had confirmed that the permission of the court had not been taken for the reopening. 

“I wanted to show the order for some reasons. The CJM noted that no permission has been taken for reopening the case.” He also stated that the Magistrate had rightly accepted the closure report of the police in 2019.”

"There is a prima facie finding of the Magistrate before you that the arrest is illegal. The root is tainted with illegality. This should weigh with your lordships. The whole thing is mala fide," Harish Salve resounded. 

'COURT HAS THE POWER TO GRANT BAIL'

Responding to Justice Shinde’s question on whether the CJM’s order is presently under challenge, Salve said, “It does not matter if the order is under challenge or not. The CJM passed the order after seeing the records and case diary." Salve stated that despite the CJM's order being under challenge, the court had the power to grant Arnab Goswami bail under Section 226.

"What is the harm if this gentleman is released on bail? What is going to happen between now and after Diwali?", asked Salve.

'PLEASE, MARK THE WORDS'

Salve also brought out the mention of Arnab Goswami in the Assembly.  "The members alleged that Goswami used defamatory language against the Chief Minister and other politicians, called them in single salutations etc." The senior advocate added, that there was reference to the suicide Anvay Naik during the Assembly discussions.

The senior advocate also mentioned Maharashtra Home Minister Anil Deshmukh and Shiv Sena and Rajya Sabha MP Sanjay Raut in the context of their statements on the Arnab Goswami case.  

"The Home Minister said in assembly that the suicide of Anvay Naik was due to the non-payment of dues by Arnab Goswami. Is the Minister above the judiciary to decide?" Salve asked. "The Home Minister said that necessary "orders will be issued to the Police". Please mark the words," Salve thundered.

Tearing apart the fact that the evidence against Arnab was negligible, Salve fired an argument right at Sanjay Raut. 

“Sanjay Raut said that if somebody is named in a suicide note, he should be put in jail. I won't blame Raut for not knowing the law. I will show to the Court some judgments.  No person even superficially familiar with law - Raut is another matter - would hold these accused prima facie liable for abetment to suicide," he also said. 

Pulling it together to make a strong overall point, Salve said “One thing is now clear. The CJM has found that the inquiry commenced without Section 173(8) order. This is corroborated by the statement of Home Minister, which was made in a debate against Goswami for his comments against CM."

SLICING THE MERITS OF THE CASE

Rooted in law, Salve stated, "The conduct for abetment to suicide must be "direct and proximate". 

"You have commercial disputes with different people for over two years. You don't file a suit. You have creditors beating at your door. You kill yourself. There cannot be FIR for abetment to suicide for this,” Salve asserted in court. 

Salve went on to quote from case law extensively. He referred to the Supreme Court order in 'M Arjunan v State' case when the court observed that use of abusive words for not repaying the borrowed money was not a ground for abetment to suicide under Section 306 IPC. "The intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary for abetment to suicide offense," he said.

"Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained" Salve stated as he quoted from the judgment in the 'M Arjunan v State' case. He also referred to the 'Gurucharan Singh v State of Punjab' case and said, "'I can cite a half a dozen more cases. But I think I have made the point clear."

"Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable" Salve said.

Salve continued to argue on the merits of the case while strongly making the point that the evidence against Arnab Goswami was non-existent., "What are the admitted facts? For two years there was a money problem. Somebody owed 4 crores. Somebody owed 83 lakhs." 

Very importantly, Salve pointed out to the court, "The Magistrate rightly asked why the mother committed suicide”— a question which still looms at large in the context of this case.

Salve sliced the allegation that Arnab Goswami was responsible for the suicide by saying, "Nobody has suggested that there was any personal relationship between the accused and the deceased. It was a commercial transaction.”

THE PATTERN OF MALICE

Salve highlighted the Bombay High Court provided relief to Goswami in the FIRs over his reportage of the Palghar mob lynching to highlight the ‘pattern’ and ‘malice’ at play.

"There is a pattern", Harish Salve said. "HC has protected him from arrest in two FIRs. The TRP case came after that," he added.

HANSA’s ALLEGATIONS AGAINST ENCOUNTER COP, PARAM BIR, STATE OF MAHARASHTRA

Salve significantly highlighted that Hansa Research, the company that had filed the complaint in the TRP scam, also told the court about being asked to frame Republic in the case. "There is no doubt that this State is acting out of malice in fact," Salve said. Salve was referring to the fact that Hansa Research earlier in the day had filed a writ petition against encounter cop Sachin Vaze, Mumbai Police Commissioner Param Bir Singh and the State of Maharashtra, alleging coercion to implicate Republic in the case.

Saying it as it is, the Senior advocate then said, "Under these circumstances, there is no need to keep him in custody."

‘HE WILL GO BACK TO SCREAMING ON TV’ 

Speaking of the roaring intent of Arnab Goswami to continue his accountability-driven journalism, Salve said: 

“The problem cannot be that he will go back to the TV channel and scream and will make allegations against Param Bir Singh. He will certainly. But that it is no ground to keep him in custody."

As Harish Salve's strong arguments on Friday were noted across the country, the hearing is now set to continue in the Bombay High Court at 12 pm on Saturday.

READ:Big Observations In Arnab's Remand Copy: 'No Evidence Presented To Justify Police Custody'