US’s Third President Thomas Jefferson has once said that, “Our Liberty depends on the freedom of the press and that cannot be limited without lost.” But at the same time, it is undeniably true that such freedom must not be used as a mask to propagate selective propaganda for political gains or as a means to commercialize the news. In this century, where social media has been emerged as an invention of the century, it is at same time laying deep impact on all spheres of our life in both positive and negative ways. Its not many days ago, when death of a popular cine star has created a havoc on social media as well as press. This trend continued and few News channels for their sake of TRP business had continuously promoted it. The etiquettes and discipline which must have been admired and followed by the Journalist has been buried dip down in the sea. Vilification has been done, rumours has been spread, Celebrities has been challenged from Studio, politicians and celebrities were abused; in fact, no stone has been left unturned by both sides to mobilize people in their favour. 2020 has been a bad year but all these incidents have made it worse. But even after all this, how much is it justified under Law for political parties to use their political powers to fulfil their vendetta and to reopen the investigation of a criminal case which has already been closed by the investigating agency because of lack of evidence. This question will be discussed further in details by the author.
But before that we shall discuss in details the facts around the case.
Maharashtra Police on Wednesday has arrested Republic TV owner and editor-in-chief Arnab Goswami in connection with a 2018 suicide case. In May 2018, Interior designer Anvay Naik, along with his mother Kumud Naik, were found dead at their bungalow in Alibaug. The police in this case had registered an accidental death report and a case of murder.
The police had found a suicide note written in English in which Anvay said he and his mother decided to take the extreme step on account of payments due to them not being cleared by the owners of three companies – television journalist Arnab Goswami of Republic TV, Feroz Shaikh of IcastX/Skimedia and Niteish Sarda of Smartworks. The note adds that the three firms owed Naik’s company, Concorde Designs Pvt Ltd, Rs 83 lakh, Rs 4 crore and Rs 55 lakh respectively.
The local Raigad police that has been investigating the case closed the case in April 2019 saying that they did not find evidence against the accused named in the suicide note, including Goswami.
However, in May this year, Anvay’s daughter approached the Maharashtra Home Minister Anil Deshmukh seeking the case be reopened. Maharashtra Home Minister Anil Deshmukh had tweeted in May, “Adnya Naik had complained to me that Alibaug Police had not investigated non-payment of dues from Arnab Goswami’s Republic which drove her entrepreneur father and grandma to suicide in May 2018. I’ve ordered a CID re-investigation of the case.” Adnya had also alleged that the police had not investigated the angle of Rs 83 lakh that Goswami had not paid her father that drove him to commit suicide.
While the Home Department had transferred the case to CID in May this year, officers outside Arnab’s residence Wednesday said the very court where the Raigad police had filed a closure report had given permission to Raigad police to reopen the case now. CID officials said they have no case against Goswami. Maharashtra police team picked up Goswami from his Mumbai residence early Wednesday morning, with television pictures showing him being pushed into a police van and taken to Alibaug where the case is registered. Police sources said Mumbai crime branch officials assisted the police team from Alibaug.
As per as statement issued by the Republic TV, Goswami has been arrested under section 306 of the IPC. Later in the evening police has also filed a fresh case against Goswami under sec 353 of the IPC i.e. obstructing government officials from doing their duty, for resisting arrest. Police in court has asked for custody of Arnab Goswami but the Alibaug court late in the night ruled that he be sent to judicial custody for 14 days. Goswami has filed for bail and the court has asked the investigation officer to file a reply.
This manner in which this whole Incident has took place (Not forgetting the intent which might have been motivated by political vendetta) has been criticized by many, even those who didn’t liked the manner of Arnab’s Journalism. This was treated as direct attack on the independence of Journalism. Without questioning the other whatsoever in the matter and without checking the intent and motive behind it, we must discuss the legality of the most important legal question in this whole incident i.e. whether it is justified to order for reinvestigation in a case in which the closure report has already been submitted and which at that time has been accepted by the court; And whether such power to order for reinvestigate lies unshattered in the hands of judiciary. As well as, what new significant evidence the investigating agencies has found which has led to the extent of reopening of a case or is it just the satisfaction of some political vendetta which has led Court to put aside all procedural requirements under CrPC and to order for reinvestigation in the matter, we shall try to discuss all these aspect through the perspective of the court itself.
Closure Report and Further Investigation:
Under Section 169 CrPC, a closure report is a report which is submitted by the investigating authorities to the magistrate stating that there is no evidence or reasonable grounds or suspicion to carry forward the accused in front of magistrate and then to release the accused from custody by making him fill a bond with or without surety that is on the police officer that how he would direct it to appear.
After the closure report is submitted to the magistrate then he considers that whether there is sufficient ground for proceeding further or not. If there is sufficient ground then under Section 204 of CrPC magistrate can issue the process of proceedings. If even the report of the police states that no case is made out the Magistrate can reject it and take cognizance and further investigation under Section 173(8) CrPC is carried out.
Fair investigation requires that police should examine entire evidence and if no case is made out there should be a closure report under section 169 which will be regarded as a report under section 173 CrPC. Again, it the duty of the Magistrate to find out whether there is a material to proceed as fair investigation is to protect the accused from unwanted prosecutions.
The right to fair trial includes ‘Fair Investigation’ [Kalyani Baskar Vs. M.S.Sampoornam, (2007)2 SCC 259.], and A victim of a crime is entitled to fair investigation in his case. [Nirmal Singh Kahlon’s case, AIR 2006 SC 1367]. A closure report may sometimes be influenced and biased and therefore it should not always end the whole proceeding. The law authorizes the Magistrate a discretion after filing of closure report that whether he wishes to go by the closure report or otherwise.
Delhi High Court in the case of N.K. Rai v. CBI, (2018 SCC OnLine Del 13200) has opined that “closure report is not binding on the learned trial court, and the court is in fact expected to apply its independent mind to the material on the record…”.
Section 173(8) was introduced in Cr.P.C. by the 41st Law Commission Report to fill in the lacunae felt in the Old Code of 1898. In the 1898 Code, there was no provision prescribing the procedure to be followed by the police for fresh investigation, when fresh facts came to light, upon the submission of the police report and subsequent to taking cognizance by the Magistrate. There was, also, no express provision prohibiting further investigation by the police. The said omission was sought to be supplied for the first time by a 2-judge bench of the Madras High Court as early as in 1919 in Divakar Singh v. A. Ramamurthi Naidu [AIR 1919 Mad 751], where it was observed that:
“Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal P.C., the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received”.
It was also held by a 2-judge bench of the Hon’ble Supreme Court in R.N. Chatterji v. Havildar Kuer Singh [(1970) 1 SCC 496], that a Magistrate is empowered to direct further investigation under Section 156(3) of the Cr.P.C., in the absence of any mandatory provision existing to this effect.
So, as far as the investigative powers of the police is concerned, it is a settled legal position that the police are empowered to undertake further investigation after submission of the final report under Sec 173(8) of the Cr.P.C. [also held in Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322]. The only thing, as provided in Ram Lal Narang, is that it is desirable that the police inform the court and seek its formal permission before making such further investigation.
It should however be noted that Section 173(8) only talks about a further investigation, and not fresh investigation. This distinction is clarified and elaborated by the Hon’ble Supreme Court in Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762], wherein it has been held that “further investigation” is a power vested with the executive where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8), The expression is to be understood in complete contradistinction to a “reinvestigation”, “fresh” or “de novo” investigation, wherein there has to be a definite order of the court.
In the light of above discussion, we can conclude that as much as the law is concerned, it does not restrict the further investigation by the order of court even if the closure report has been submitted. But Such can be done only when the agencies find something substantial in the matter and in this case as the News reports, nothing substantial has been turned up after all this time and just the fact that victim’s daughter has reached Home Minister and has asked for reinvestigation, can-not and should not be a ground for reinvestigation. The legislative intent while enacting the CrPC was to provide for fair and just trail in a case as well as to reduce the burden from the shoulders of Judiciary. The precious time of judiciary is none’s personal asset and must be used wisely and Court should never act in the shadow of some political giant. Denial of Bail to the accused as well to order for Judicial Custody in the case after all this incident genuinely forms a series of genuine question. After all these years of Independence, is our judiciary still not free from influence from other two organs, is a serious question. Court must come up in front to save its reputation and to answer that what substantial it has seen in the case that it has ordered for reopening the case. Its true that reopening of a case can surely be done in exceptional circumstances with properly following the procedures under CrPC and by complying to other procedural laws, but in this case whether it has been done or not is also still unclear.
We should not forget the basic fact that Judiciary is meant for grant justice to all and for that matter bundle of powers has been authorised to Judiciary. But such power must be used wisely and only to insure just and fair trail and not just to harass someone with whom you might not be in good terms with or with a political vendetta. Also, at the same time, it must not forget that the significance of Independence of press is paramount in a democracy and what impact it will be of this incident on such freedom.
Court for now has agreed to hear on the matter after Dipawali, so before commenting further on the issue we must wait and see if what course the court takes in the matter.
Disclaimer: The View represented in this blog is Author's and A & S jurisprudentia Ltd. does not verify the views as well as accuracy in this blog.