ARNAB MANORANJAN GOSWAMI versus THE STATE OF MAHARASHTRA & ORS.

[2020] 11 S.C.R. 896

ARNAB MANORANJAN GOSWAMI

THE STATE OF MAHARASHTRA & ORS.

Criminal Appeal No. 742 of 2020

NOVEMBER 27, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Constitution of India – Arts. 226 and 227 – Code of CriminalProcedure, 1973 – s.482 and s.439 – Penal Code, 1860 – s.306 ands. 34 – The appellant was arrested on 04.11.2020 in connectionwith FIR registered u/s. 306 and s.34 of the IPC – It was alleged thatthe appellant had not paid an amount due to the deceased for thework which was carried out by him, as result of which he wasunder mental pressure and he committed suicide by hanging – In thesuicide note three individuals were held responsible including theappellant – The appellant invoked jurisdiction of the High Court u/Arts. 226/227 of the Constitution and s.482 of the Cr.P.C. and soughtquashing of FIR along with other reliefs – Pending the disposal ofthe petition, the appellant filed an application and sought his releasefrom the judicial custody – The High Court held that since theappellant was in judicial custody, it was open to him avail of theremedy of bail u/s. 439 of the Cr.P.C. – The High Court declinedprima facie to consider the submission of the appellant that theallegations in the FIR, read as they stand, do not disclose thecommission of an offence u/s. 306 of the IPC – The appellant filedan appeal before the Supreme Court aggrieved by the denial of hisinterim prayer for the grant of bail – On 11.11.2020, the SupremeCourt, after reserving the judgment, ordered and directed the releaseof all the three individuals including appellant on bail pending thedisposal of the proceedings before the High Court – Held: Accordingto the spouse of the deceased, her husband was over the previoustwo years ‘having pressure as he did not receive the money of workcarried out by him’ – The deceased left behind suicide note statingthat his “money is stuck and following owners of respective companiesare not paying our legitimate dues” – The consistent line of authorityof Supreme Court lays down that in order to bring case within the

ARNAB MANORANJAN GOSWAMI v.THE STATE OF MAHARASHTRA

purview of s.306 IPC, there must be case of suicide and in thecommission of the said offence, the person who is said to haveabetted the commission of suicide must have played an active roleby an act of instigation or by doing certain act to facilitate thecommission of suicide – Therefore, the act of abetment by the personcharged with the said offence must be proved and established bythe prosecution – In the instant case, prima facie, on the applicationof test laid down by the Supreme Court it cannot be said that theappellant was guilty of having abetted suicide within the meaningof s.306 of the IPC – The High Court in failing to notice the contentsof FIR and to make prima facie evaluation abdicated its role,functions and jurisdiction when seized of petition u/s. 482 of Cr.P.C.–As 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.226to consider appellant’s application for bail – While consideringapplication u/Art. 226, the High Court must be circumspect inexercising its power on the basis of the facts of each case – However,the High court should not foreclose itself from the exercise of thepower when citizen has been arbitrarily deprived of their personalliberty in an excess of state power – Therefore, the interim protectiongranted to the accused on 11.11.2020 continue to remain in operationpending 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 ofthe Constitution and u/s.482 of the Cr.P.C. for quashing the FIRand the arrest memo – Thereafter, the appellant filed application forinterim bail – The High Court declined to evaluate prima facie at theinterim stage in petition for quashing the FIR as to whether anarguable case has been made out – The High Court further declinedto allow the appellant’s prayer for interim bail and relegated him tothe remedy u/s.439 of Cr.P.C. – Aggrieved, the appellant filed anappeal before the Supreme Court – It was submitted by therespondents that procedural hierarchy of Courts in mattersconcerning the grant of bail needs to be respected – Held: Therespondents are right in submitting that the procedural hierarchy ofcourts in matters concerning the grant of bail needs to be respected– However, there was failure of the High Court to discharge itsadjudicatory function at two levels – first in declining to evaluate

Aprima facie at the interim stage in petition for quashing the FIR asto whether an arguable case has been made out, and secondly, indeclining interim bail, as consequence of its failure to render aprima facie opinion on the first – The High Court did have the powerto protect the citizen by an interim order in petition invoking Art.226 – Where the High Court has failed to do so, Supreme CourtBwould be abdicating its role and functions as constitutional courtif it refuses to interfere, despite the parameters for such interferencebeing met.

Words and Phrases – “Human Liberty and the role of the Courts” –discussed.C

Disposing the appeals, the Court

HELD: 1. The FIR recites that the spouse of the informanthad company carrying on the business of architecture, interiordesign and engineering consultancy. According to the informant,Dher husband was over the previous two years “having pressureas he did not receive the money of work carried out by him”. TheFIR recites that the deceased had called at the office of theappellant and spoken to his accountant for the payment of money.Apart from the above statements, it has been stated that thedeceased left behind suicide note stating that his “money isEstuck and following owners of respective companies are not payingour legitimate dues”. Prima facie, on the application of the testwhich has been laid down by this Court in consistent line ofauthority, it cannot be said that the appellant was guilty of havingabetted the suicide within the meaning of Section 306 of the IPC.FThese observations, are prima facie at this stage since the HighCourt is still to take up the petition for quashing. Clearly however,the High Court in failing to notice the contents of the FIR and tomake prima facie evaluation abdicated its role, functions andjurisdiction when seized of petition under Section 482 of theCrPC. The High Court recited the legal position that theGjurisdiction to quash under Section 482 has to be exercisedsparingly. These words, however, are not meaninglessincantations, but have to be assessed with reference to thecontents of the particular FIR before the High Court. If the HighCourt were to carry out prima facie evaluation, it would haveH

been impossible for it not to notice the disconnect between theFIR and the provisions of Section 306 of the IPC. The failure ofthe High Court to do so has led it to adopting position where itleft the appellant to pursue his remedies for regular bail underSection 439. The High Court was clearly in error in failing toperform duty which is entrusted to it while evaluating petitionunder Section 482 albeit at the interim stage. [Para 55][939-F-H;940-A-D]

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

3. While considering an application for the grant of bail underArticle 226 in suitable case, the High Court must consider thesettled factors which emerge from the precedents of this Court.These factors can be summarized as follows: (i) The nature of thealleged offence, the nature of the accusation and the severity ofthe punishment in the case of conviction; (ii) Whether thereexists reasonable apprehension of the accused tampering withthe witnesses or being threat to the complainant or the witnesses;(iii) The possibility of securing the presence of the accused at thetrial or the likelihood of the accused fleeing from justice; (iv) Theantecedents of and circumstances which are peculiar to theaccused; (v) Whether prima facie the ingredients of the offenceare made out, on the basis of the allegations as they stand, in the

AFIR; and (vi) The significant interests of the public or the Stateand other similar considerations. [Para 57][940-D-H; 941-A-C]

4. These principles have evolved over period of time andemanate from the following (among other) decisions: Prahlad SinghBhati vs NCT, Delhi; Ram Govind Upadhyay vs Sudarshan Singh;BState of UP vs Amarmani Tripathi; Prasanta Kumar Sarkar vs AshisChatterjee; Sanjay Chandra vs CBI; P. Chidambaram vs CentralBureau of Investigation. [Para 58][941-D]

5. These principles are equally applicable to the exerciseof jurisdiction under Article 226 of the Constitution when the courtCis called upon to secure the liberty of the accused. The High Courtmust exercise its power with caution and circumspection, cognizantof the fact that this jurisdiction is not ready substitute forrecourse to the remedy of bail under Section 439 of the CrPC. Inthe backdrop of these principles, it has become necessary toscrutinize the contents of the FIR in the case at hand. In thisDbatch of cases, prima facie evaluation of the FIR does notestablish the ingredients of the offence of abetment of suicideunder Section 306 of the IPC. The appellants are residents ofIndia and do not pose flight risk during the investigation or thetrial. There is no apprehension of tampering of evidence orEwitnesses. Taking these factors into consideration, the order dated11 November 2020 envisaged the release of the appellants onbail. [Para 59][941-E-G; 942-A]6. Human liberty is precious constitutional value, which isundoubtedly subject to regulation by validly enacted legislation.FAs such, the citizen is subject to the edicts of criminal law andprocedure. Section 482 recognizes the inherent power of the HighCourt to make such orders as are necessary to give effect to theprovisions of the CrPC “or prevent abuse of the process of anyCourt or otherwise to secure the ends of justice”. Decisions ofthis court require the High Courts, in exercising the jurisdictionGentrusted to them under Section 482, to act with circumspection.In emphasising that the High Court must exercise this powerwith sense of restraint, the decisions of this Court are foundedon the basic principle that the due enforcement of criminal law

should not be obstructed by the accused taking recourse toartifices and strategies. The public interest in ensuring the dueinvestigation of crime is protected by ensuring that the inherentpower of the High Court is exercised with caution. That indeed isone - and significant - end of the spectrum. The other end of thespectrum is equally important: the recognition by Section 482 ofthe power inhering in the High Court to prevent the abuse ofprocess or to secure the ends of justice is valuable safeguardfor protecting liberty. The Code of Criminal Procedure of 1898was enacted by legislature which was not subject to constitutionalrights and limitations; yet it recognized the inherent power inSection 561A. Post Independence, the recognition by Parliamentof the inherent power of the High Court must be construed as anaid to preserve the constitutional value of liberty. The writ of libertyruns through the fabric of the Constitution. The need to ensurethe fair investigation of crime is undoubtedly important in itself,because it protects at one level the rights of the victim and, at amore fundamental level, the societal interest in ensuring thatcrime is investigated and dealt with in accordance with law. Onthe other hand, the misuse of the criminal law is matter of whichthe High Court and the lower Courts in this country must be alive.In the present case, the High Court could not but have beencognizant of the specific ground which was raised before it by theappellant that he was being made target as part of series ofoccurrences which have been taking place since April 2020. Thespecific case of the appellant is that he has been targeted becausehis opinions on his television channel are unpalatable to authority.Whether the appellant has established case for quashing theFIR is something on which the High Court will take final viewwhen the proceedings are listed before it but we are clearly of theview that in failing to make even prima facie evaluation of theFIR, the High Court abdicated its constitutional duty and functionas protector of liberty. Courts must be alive to the need tosafeguard the public interest in ensuring that the due enforcementof criminal law is not obstructed. The fair investigation of crime isan 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 weapon for theselective harassment of citizens. Courts should be alive to both

Aends of the spectrum – the need to ensure the proper enforcementof criminal law on the one hand and the need, on the other, ofensuring that the law does not become ruse for targetedharassment. Liberty across human eras is as tenuous as tenuouscan be. Liberty survives by the vigilance of her citizens, on thecacophony of the media and in the dusty corridors of courts aliveBto the rule of (and not by) law. Yet, much too often, liberty is acasualty when one of these components is found wanting. [Para60][942-B-H; 943-A-D]7. The respondents are undoubtedly right in submittingthat the procedural hierarchy of courts in matters concerning theCgrant of bail needs to be respected. However, there was failureof the High Court to discharge its adjudicatory function at twolevels – first in declining to evaluate prima facie at the interimstage in petition for quashing the FIR as to whether an arguablecase has been made out, and secondly, in declining interim bail,Das consequence of its failure to render prima facie opinion onthe first. The High Court did have the power to protect the citizenby an interim order in petition invoking Article 226. Where theHigh Court has failed to do so, this Court would be abdicating itsrole and functions as constitutional court if it refuses to interfere,despite the parameters for such interference being met. The doorsEof this Court cannot be closed to citizen who is able to establishprima facie that the instrumentality of the State is being weaponizedfor using the force of criminal law. Our courts must ensure thatthey continue to remain the first line of defense against thedeprivation of the liberty of citizens. Deprivation of liberty evenFfor single day is one day too many. [Para 61][943-E-H]

Amalendu Pal vs State of West Bengal (2010) 1 SCC707 : [2009] 15 SCR 836; S S Chheena vs Vijay KumarMahajan (2010) 12 SCC 190 : [2010] 9 SCR 1111;Madan Mohan Singh vs State of Gujarat (2010) 8 SCCG629 : [2010] 10 SCR 351; M Arjunan vs State(represented by its Inspector of Police) (2019) 3 SCC315; Ude Singh and Ors. vs State of Haryana [2019] 9SCR 703; Rajesh vs State of Haryana (2020) 15 SCC 359; Gurcharan Singh vs State of Punjab (2020)

ARNAB MANORANJAN GOSWAMI v.THE STATE OF MAHARASHTRA

10 SCC 200; Narayan Malhari Thorat vs VinayakDeorao Bhagat (2019) 13 SCC 598 : [2018] 14SCR 232; Romila Thapar vs Union of India (2018) 10SCC 753 : [2018] 11 SCR 951 – relied on.

State of Telangana vs Habib Abdullah Jeelani (2017) 2SCC 779 : [2017] 1 SCR 141; Praveen Pradhan vs Stateof Uttaranchal and Ors. (2012) 9 SCC 734 : [2012] 8SCR 1129; Vinubhai Haribhai Malaviya vs State ofGujarat 2019 SCC OnLine SC 1346; Madan MohanSingh vs State of Gujarat (2010) 8 SCC 628 : [2010]10 SCR 351; Sunil Bharti Mittal vs Central Bureau ofInvestigation (2015) 4 SCC 609 : [2015] 1 SCR 377; Common Cause vs Union of India (2018) 5 SCC 1 :[2018] 6 SCR 1; Vineet Narain and Ors. vs Union ofIndia and Ors.(1998) 1 SCC 226: [1997] 6 Suppl.SCR 595; Hema Mishra vs State of UP. (2014) 4 SCC453: [2014] 1 SCR 465; State of Haryana vs BhajanLal 1992 Suppl. 1 SCC 335 : [1990] 3 Suppl. SCR 259; Kamal Shivaji Pokarnekar vs State ofMaharashtra (2019) 14 SCC 350; State of West Bengalvs Orilal Jaiswa1 (1994) 1 SCC : [1993] 2 Suppl. SCR 461; Randhir Singh vs State of Punjab (2004) 13SCC 129 : [2004] 5 Suppl. SCR 351; Kishori Lal vsState of MP (2007) 10 SCC 797 : [2007] 7SCR 1051; Kishangiri Mangalgiri Goswami vs State ofGujarat (2009) 4 SCC 52 : [2009] 1 SCR 672; VaijnathKondiba Khandke vs State of Maharashtra and Ors.(2018) 7 SCC 781; Prahlad Singh Bhati vs NCT, Delhi(2001) 4 SCC 280:[2001] 2 SCR 684; Ram GovindUpadhyay vs Sudarshan Singh (2002) 3 SCC 598 :[2002] 2 SCR 526; State of UP vs Amarmani Tripathi(2005) 8 SCC 21 : [ 2005] 3 Suppl. SCR 454; PrasantaKumar Sarkar vs Ashis Chatterjee (2010) 14 SCC496:[2010] 12 SCR 1165; Sanjay Chandra vs CBI(2012) 1 SCC 40: [2011] 13 SCR 309; P. Chidambaramvs Central Bureau of Investigation (2020) 13 SCC 337;State of Rajasthan, Jaipur vs Balchand (1977) 4 SCC308:[1978] 1 SCR 535 – referred to.

904SUPREME COURT REPORTS

[2020] 11 S.C.R.

From the Judgment and Order dated 09.11.2020 of the High Courtof Bombay in the Interim Application 4278 of 2020 in Criminal WritBPetition (St.) No. 4132 of 2020.

With

Criminal Appeal Nos. 743 & 744 of 2020.

Harish Salve, Siddharth Bhatnagar, Abaad Ponda, GopalSankaranarayanan, Mukul Rohtagi, Kapil Sibal, Amit Desai, DevdattaKamat, C. U. Singh, Sr. Advs., Ms. Malvika Trivedi, Saket Shukla, VasanthRajasekaran, Mrinal Ojha, Debarshi Dutta, Rajat Pradhan, BiswadeepChakravorty, Ms. Madhavi Doshi, Sanjeev Sambasivan, Siddhant Kumar,Ms. Kajri Roy, Ms. Chetna N. Rai, Ms. Sheena Iype, Nirnimesh Dube,Ms. Rashi Bansal, Ms. Esha Bhadoria, Sameer Singh, Vijay Agarwal,Mahesh Agarwal, Gaurav Kejriwal, Ishwar Nankni, Aditya Kanodia,Samir Ali Khan, Mudit Jain, Rahul Agarwal, Nishant Rao, Ankit Kohli,Rahul Chitnis, Sachin Patil, Dipak Thakre, Hemant Shah, Geo Joseph, F.I. Choudhury, Noor Ul Islam, Vaibhav Karnik, Advs. for the appearingparties.

The Judgement of the Court was delievered by

DR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into sections to facilitate analysis.They are:

AHJurisdiction of the High Court under Article 226 and Section482 CrPC

IPrima Facie evaluation of the FIR and the grant of bail

JHuman liberty and the role of courts

BKConclusion

A. The appeal

1. While invoking the jurisdiction of the High Court of Judicatureat Bombay under Articles 226 and 227 of the Constitution of India andSection 482 of the Code of Criminal Procedure, 1973 (“CrPC”), theCappellant sought three substantive reliefs:

(i)A writ of Habeas Corpus, claiming that he had been illegallyarrested and wrongfully detained by the Station House Officer(“SHO”) at Alibaug Police Station in the district of Raigad inMaharashtra in relation to First Information Report[1] (“FIR”)Dregistered on 5 May 2018 under Sections 306 and 34 of theIndian Penal Code, 1860 (“IPC”) in spite of an earlier closurereport which was accepted by the Magistrate;

(ii)The quashing of the above-mentioned FIR; and

(iii)The quashing of the arrest memo on the basis of which theEappellant had been arrested.

These three reliefs[2] are reflected in prayers (a), (b) and (c) of thepetition before the High Court.

F1CR No. 0059 of 2018

2 (a) Issue writ of habeas corpus and/or any other similar writ, order and directionof like nature, directing the Respondents to produce the Petitioner who has beenillegally arrested and wrongfully detained by the Respondent No. 2 in relation toFIR, being C.R. No. 0059 of 2018 dated 5 May 2018, registered at Alibaug PoliceStation, Raigad, under Sections 306 and 34 of the Indian Penal Code, 1860,despite closure report being filed;G(b)Issue writ of mandamus and/or any other similar writ, order and direction oflike nature, quashing the FIR, being C.R. No. 0059 of 2018, dated 5 May 2018,registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of theIndian Penal Code, 1860;

(c)Issue writ of certiorari and/or any other similar writ, order and direction of likenature, quashing and/or setting-aside the arrest memo, if any, on the basis ofHwhich the Respondents have wrongfully and illegally arrested the Petitioner;

2. Pending the disposal of the petition, by an interim application inthe proceedings[3], the appellant sought his release from custody and astay of all further proceedings including the investigation in pursuance ofthe FIR.

3. Division Bench of the High Court, by its order dated 9November 2020, noted that prayer (a) by which writ of habeas corpuswas sought was not pressed. The High Court posted the hearing of thepetition for considering the prayer for quashing of the FIR on 10 December2020. It declined to accede to the prayer for the grant of bail, placingreliance on decision of this Court in State of Telangana vs HabibAbdullah Jeelani[4] (“Habib Jeelani”). The High Court was of the viewthat the prayers for interim relief proceeded on the premise that theappellant had been illegally detained and since he was in judicial custody,it would not entertain the request for bail or for stay of the investigationin the exercise of its extra-ordinary jurisdiction. The High Court held thatsince the appellant was in judicial custody, it was open to him to avail ofthe remedy of bail under Section 439 of the CrPC. The High Court declinedprima facie to consider the submission of the appellant that the allegationsin the FIR, read as they stand, do not disclose the commission of anoffence under Section 306 of the IPC. That is how the case has come tothis Court. The appellant is aggrieved by the denial of his interim prayerfor the grant of bail.

B. The parties, the FIR and ‘A’ Summary

4. The appellant is the Editor-in-Chief of an English television newschannel, Republic TV. He is also the Managing Director of ARG OutlierMedia Asianet News Private Limited which owns and operates Hinditelevision news channel by the name of R Bharat. The appellant anchorsshows on both channels.

5. The appellant was arrested on 4 November 2020 in connection

3 (a)Pending final hearing and disposal of the captioned writ petition, this Hon’bleCourt be pleased to grant bail to the Petitioner in FIR No. 59 of 2018 and directthe Respondents and/or each of them to immediately release the Petitioner fromillegal detention and wrongful custody and/or arrest by the Respondents in viewof detailed submissions made herein above, to meet the ends of justice.(b)Pending the final hearing and disposal of the captioned writ petition, this Hon’bleCourt be pleased to stay all further proceedings, including the investigation inFIR No. 59 of 2018, with respect to the Petitioner.4(2017) 2 SCC 779

Awith FIR 59 of 2018 which was registered at Alibaug Police Stationunder Sections 306 and 34 of the IPC.

6. The genesis of the FIR can be traced back to December 2016,when company by the name of ARG Outlier Media Private Limited(“ARG”) awarded contract for civil and interior work to anotherBcompany, Concorde Design Private Limited (“CDPL”) which was ownedsubstantially by Anvay Naik (the “deceased”).

7. The FIR was registered on 5 May 2018 on the complaint ofAkshyata Anvay Naik (the “informant”), the spouse of the deceasedwho is alleged to have committed suicide. The contents of the FIR readCthus:

“12. First Information contents:

Facts : I Smt. Akshata Anvay Naik Age 48 yeas, occupationhousewife, residing at 901, Rishabh Tower, Senapati Bapat Marg,Elphistone West, Mumbai-25 personally remain present and stateDin writing that my mobile No. [REDACTED], I am residing at theabovementioned address with my deceased Anvay MadhukarNaik, daughter Adnya Naik together. My husband is havingcompany owned under name and dstype as Concorde Design andwe were having our livelihood by doing business of architectureEinterior designing and engineering consultancy. My husband AnvayMadhukar Naik is having his native place at Village Kavir, Tai.Alibaug and at the said place my mother in law Kumud MadhukarNaik is residing . therefore my husband used to visit in between tomy mother in law at Village Kavir Tai. Alibag . As also my husbandused to bring my mother in law Kumud Naik in between with us atFMumbai. My husband for last two years was having pressure ashe did not received the money of work carried out by him and hecontinuously used to inform me and therefore I also called in theoffice of Amav Gosmani and asked his accountant for payment ofmoney of work done by us. As also contacted to other businessmanGalso and informed that my husband is in great difficulty and as themoney is not received he is under great mental pressure. Yesterdayon 04.05.2018 at 3.45 pm in afternoon my husband AnvayMadhukar Naik and my mother in law Kumud Madhukar Naikleft from our house at Mumbai and came at Alibag Kavir. At evening7.30 I called on the mobile No. [REDACTED] of my mother in lawHand when enquired as to whether they have reached at our farm

house at Kavir Ali bag or otherwise when my mother in lawinformed me that she and my husband reached and as care takeraaji gone out she will required to carry out all the work in thehouse. Today on 05.05.2018 at morning 9.30 am when I and mydaughter Adnya were at our house at Mumbai Shri Aruni Patilresiding at Dadar Hindu Colony, Mumbai called my daughter Adnyaon her mobile that my mother in law Kumud Naik expired.Therefore I and my daughter Adnya sister Mrs. Manjusha DurgeshVaingankar, and her daughter Shreya Vaingankar started comingto Alibag through our own vehicle. After we reached at WadkhalI called on mobile of friend of my husband Shri Akshit Lakhaniand enquired about my husband when he informed that my husbandAnvay Madhukar Naik has also committed suicide . When wereached at our farm house at Kavir at around 2.15 pm in afternoonthere was huge crowd of public and police were gathered.Therefore when we went inside and saw that my mother in lawKumud Naik was lying on bed near dining room. Thereafter fromstair case when we went on upper floor saw that my husbandAnvay Madhukar Naik was lying and one thread was hanged oniron pipe of house. Thereafter police enquired with us and informedus about the said incident. Thereafter only informed that they weretaking my husband Anvay Madhukar Naik and mother in lawKumud Madhukar Naik to Civil Hospital Alibag. When we werepresent in the said house police shown us note written by myhusband Anvay Madhukar Naik in his own handwriting in English(suicide note). The handwriting in the said note is his handwritingand the signature on it is also of his only and l identify the same. Inthe said note he has written in English as 3) Suicide Note, 4) weare committing suicide due to following 5) our (Concorde designsPvt Ltd) 6) We both directors I) Mr. Anvay M. Naik 2) KumudM. Naik, 7) Money is stuck and following owners of respectedcompanies are not paying our legitimate dues 8) Mr. AmabGoswami ARG Outlier of Republic TV, not paid 83 lacs forBombay Dyeing Studio project, 9) Feroz Shaikh Icaswt X /Skimedia not paid our 400 lacs in Laxmi, 3rd and 4th floor ideaSquare project in Andheri 10) Mr. Niteish Sarda owner of smartworks Magarpattaq and Baner Project (55 Lacs pending) 11) kindlycollect money from them and held them responsible for our deathand pay to creditors 12) I and my mother are directors in Concorde

AIndia company and following persons have till now not paid memoney of work done by me. In which it is written as Arnab GoswamiARV Outlife Of Republic TV having Rs.83 Lac of work done, 2)Firoz Khan having 4 crores of work done, 3) Nitesh Sarda 55 lacsof work done should be deposited and should be held responsiblefor my death and getting the same deposited and pay the dues ofBpublic. With regard to the contents written in the said note myhusband Anvay Madhukar Naik had continuously informed mefor last one or two years. While he used to tell me he was underimmense pressure. Therefore I am having lawful complaintagainst. Arnab Goswami, 2. Firoz Khan, 3. Nilesh Sarda the personsCwhose names written in said suicide note by my husband AnvayMadhukar Naik that the abovementioned amount was due fromthem and even after continuously demanding the said amount havenot paid the said amount and therefore my husband was undergreat pressure therefore my husband Anvay Naik Age 53 yearsand my mother in law Kumud Madhukar Naik died and theDinformation of such contents was registered and PI Shri Waradeis investigating the said offence.

The FIR records thus:

(i)The appellant (who owns the company ARG) had not paidEan amount of Rs. 83 lacs for the Bombay Dyeing Studioproject. In addition, there was an outstanding amount of Rs.4 crores from Feroz Shaikh and Rs. 55 lacs from NiteshSarda (who are the appellants in the connected CriminalAppeals);

F(ii)The spouse of the informant had not received payment forthe work which was carried out by him, as result of whichhe was under mental pressure and that he committed suicideby hanging on 5 May 2018;

(iii)There is suicide note‘ holding the above three individualsGresponsible; and

(iv)The informant was informed on 5 May 2018, when she andher daughter were at their residence at Mumbai, that hermother-in-law Kumud Naik had died at their Alibaugresidence. On the way to Alibaug, she was informed that herhusband had committed suicide. On reaching the house atH

Alibaug, she found the body of her mother-in-law lying on abed and that her spouse had committed suicide by hanging.

8. On 6 May 2018, officers from the Alibaug Police Station visitedARG’s office in Mumbai and served three notices under Section 91 ofthe CrPC. On 7 and 8 May 2018, two representatives of ARG visitedAlibaug Police Station where they claim to have handed over theinformation which was sought by the police in their notices under Section91. On 22 May 2018, the appellant submitted representation to thenotice under Section 91 following which on 30 May 2018 and 28 June2018, the statements of the Chief Financial Officer and Company Secretaryof ARG were recorded.

9. On 16 April 2019, the SHO at Alibaug Police Station filed areport in the Court of the Chief Judicial Magistrate (“CJM”) for an ‘A’summary. The CJM passed an order accepting the report and granted an‘A’ summary. The meaning and import of an A‘ summary is reflected inPara 219 (3) of the Bombay Police Manual, 1959. An ‘A’ Summaryindicates case where an offence has been committed but it is undetected,in that there is no clue about the culprits or the property, or where theaccused is known but there is no evidence to justify their being sent up tothe Magistrate for trial. Para 219 (3) of the Bombay Police Manual readsthus:

“RULE 219 (3) OF BOMBAY POLICE MANUAL

(3) The final report should be written up carefully by the officersincharge of the Police Station personally and should beaccompanied by all the case papers numbered and indexedmethodically. If the accused has been released on bail, theMagistrate should be requested to cancel the bail bond. He shouldalso be requested to pass orders regarding the disposal of propertyattached, unless any of the articles, e.g., blood stained clothes, arerequired for further use in true but undetected cases. requestshould also be made to the Magistrate to classify the case and toissue an appropriate summary of his order, viz:-

“A” True. undetected (where there is no clue whatsoever aboutthe culprits or property or where the accused in known but thereis no evidence to justify his being sent up to the Magistrate (fortrial).

“B” Maliciously false.

912SUPREME COURT REPORTS

A“C” Neither true nor false, e.g., due to mistake to fact or being ofa civil nature.

“Non-cognizable” Police investigation reveals commission of onlynon-cognizable offence.”

10. Following the ‘A’ summary, there was an exchange ofBcorrespondence between ARG and the informant. ARG by their letterdated 11 June 2019, addressed to CDPL, the informant and her daughter,indicated that several meetings had been held in the past between themduring the course of which ARG had sought indemnities from CDPLagainst any future claims. In its letter, ARG stated that it would beCtransferring sum of Rs. 39.01 lacs into CDPL‘s last known bank accountagainst an indemnity for future claims by the creditors or lenders of CDPL.In response, on 15 June 2019, the informant addressed communicationto ARG stating that out of total billed amount of Rs. 6.45 crores, anamount of Rs. 5.75 crores had been received from ARG, and afteradjustment of an amount of Rs. 70.39 lacs towards deductions madeDfrom the bill, an amount of Rs. 88.02 lacs was due and payable. On 6November 2019, ARG addressed another letter to the informant recordingthe closure of the police investigation and reiterating its readiness to payan amount of Rs.39.01 lacs subject to due authorisation. The matterappears to have rested there until flurry of developments took place inEthe month of April 2020.

C. Previous proceedings against the appellant

11. During the course of the present proceedings, the appellanthas adverted to proceedings initiated against him previously by the Stateof Maharashtra, in order to support his case that the arrest is vitiated byFmalice in fact.

12. On 16 April 2020, broadcast took place on Republic TV,followed by broadcast on Republic Bharat on 21 April 2020 in relationto an incident which took place in Gadchinchle village of Palghar districtin Maharashtra. During the course of this incident on 16 April 2020,Gthree persons, including two Sadhus, were brutally killed by mob,allegedly in the presence of the police and forest guard personnel.According to the appellant, on his news show titled “Poochta hai Bharat”on 21 April 2020, he had raised issues in relation to the allegedly tardyinvestigation of the incident by the police.H13. As this Court noticed in judgment dated 19 May 2020, the

broadcasts led to the lodging of multiple FIRs and criminal complaintsagainst the appellant in the States of Maharashtra, Chhattisgarh, Rajasthan,Madhya Pradesh, Telangana and Jharkhand as well as in the UnionTerritories of Jammu and Kashmir. The content of the FIRs was similar,almost identical. In the State of Maharashtra, an FIR was lodged atPolice Station Sadar, District Nagpur City, details of which were as follows:

“Maharashtra

FIR No. 238 of 2020, dated 22 April 2020, registered at PoliceStation Sadar, District Nagpur City, Maharashtra, under Sections153, 153-A, 153-B,295-A, 298, 500, 504(2), 506, 120-B and 117of the Indian Penal Code 1860.”

Apart from the above FIR, fourteen other FIRs and complaintswere lodged against the appellant in relation to his broadcasts.

14. The appellant moved this Court in proceedings under Article32 of the Constitution[5] challenging the registration of these FIRs. By aninterim order dated 24 April 2020, the FIR which had been lodged atPolice Station Sadar, District Nagpur City was transferred to NM JoshiMarg Police Station, Mumbai and was renumbered as FIR 164 of 2020.Another FIR, FIR 137 of 2020, was registered against the appellant on 2May 2020 at the Pydhonie Police Station, Mumbai. FIR 137 of 2020 wasfiled against the appellant due to telecast which took place on 29 April2020 on the appellant‘s new channels, in which the appellant referred toa gathering of migrant workers at the Bandra Railway station during theCovid-19 pandemic, and attempted to connect place of religious worshipwith this gathering. The appellant filed another petition under Article 32of the Constitution[6], challenging the registration of FIR 137 of 2020.

15. By its judgment dated 19 May 2020, this Court quashed all theFIRs, except for the FIR which was transferred from Nagpur to Mumbai,on the ground that successive FIRs/complaints in respect of the samecause could not be maintained. The court granted liberty to the appellantto pursue such remedies as were available in law before the competentforum for quashing FIR 164 of 2020.

16. By an order dated 30 June 2020, Division Bench of theBombay High Court, while entertaining petition under Articles 226/227of the Constitution and Section 482 of the CrPC, suspended all further

5 Writ Petition (Crl.) No. 130 of 2020

6 Writ Petition (Crl.) Diary No. 1189 of 2020

Aproceedings in FIR 164 of 2020 before the NM Joshi Marg Police Stationand FIR 137 of 2020 before the Pydhonie Police Station and confirmedits interim order dated 6 June 2020 restraining the State from takingcoercive steps against the appellant in relation to the two FIRs, pendingthe disposal of the petition.

B17. Aside from this incident, the appellant has relied on certainother developments which have taken place thereafter. These are:

(i)The arrest on 9 September 2020 by the Maharashtra Policeof two employees of the appellant‘s news channel alleged tobe pursuing an investigative lead in Raigad, Maharashtra andCthe registration of FIR 142 of 2020 at Khalapur Police Station,Raigad under Sections 452, 448, 323, 504 and 506 read withSection 34 of the IPC;

(ii)The issuance of letter by the “Shiv Cable Sena” to cableoperators across Maharashtra asking them to ban the telecastof the appellant’s news channel;D

(iii)An order of the Bombay High Court dated 11 September2020 in Writ Petition under Article 226 holding that theletter of the Shiv Cable Sena did not have the force of lawand the appellant would be at liberty to pursue the remediesavailable in law;E

(iv)On 16 September 2020, notice to show cause was issuedto the appellant for breach of privilege of the legislativeassembly, which is the subject of proceedings instituted inthis court;

F(v)A notice to show cause was issued under Section 108(1) ofthe CrPC to the appellant by the Special Executive Magistrate,in spite of the order of the Bombay High Court;

(vi)The registration of FIR 843 of 2020 on 6 October 2020 atKandivali Police Station (later transferred to the CrimeIntelligence Unit, Mumbai) on complaint by an employeeGof Hansa Research Group Private Limited in relation to the‘TRP scam’;

(vii) press conference by the Commissioner of Police Mumbaion 8 October 2020 mentioning the name of the appellant asbeing allegedly involved in the ‘TRP scam’;H

(viii) The appellant instituted Writ Petition under Article 32 ofthe Constitution[7] before this Court seeking reliefs in respectof FIR 843 of 2020. By an order dated 15 October 2020, theWrit Petition was dismissed as withdrawn with liberty to theappellant to approach the Bombay High Court; and

(ix)The appellant filed Writ Petition (Crl.) Stamp No. 3143 of2020 before the Bombay High Court, in which on 19 October2020 an order was passed calling upon the InvestigatingOfficer to submit the investigation paper in sealed envelopeon 4 November 2020. The High Court noted that the appellanthad as on date not been arrayed as an accused in the FIRand if the investigating officer proposed to make an enquiry,a summons shall be issued to him. The appellant agreed tocooperate in the enquiry.

D. Re-opening of investigation and arrest of the appellant

18. On 26 May 2020, the Home Department of the State ofMaharashtra addressed communication to Deputy Inspector Generalof Police stating that the FIR registered as Crime No. 59 of 2020, atAlibaug Police Station under Sections 306/34 of the IPC, was beingtransferred to the crime investigation department “for the purpose ofreinvestigation”. The letter, insofar as is material, reads thus:

“In respect of the above mentioned subject, you are hereby informedthat crime no. 59/2020 registered at Alibaug Police Station underSection 306/34 and Crime no. 114 of 2018 registered at AlibaugPolice Station under Section 302 are being transferred to CrimeInvestigation Department for he purposes of reinvestigation. Hence,you are requested to undertake the necessary steps for handingover the case for reinvestigation and report in respect ofinvestigation already been made be submitted to the Government.”

19. On 15 October 2020, the Local Crime Investigation Branch,Raigad addressed communication to the CJM, Alibaug recording thecommencement of further investigation under Section 173(8) of the CrPCin respect of Crime No. 59 of 2018 under Section 306 read with Section34 of the IPC.

20. On 4 November 2020, the appellant was arrested at about7:45 am in connection with FIR 59 of 2018 dated 5 May 2018. At 2:37

7 Writ Petition (Crl.) 312 of 2020

Apm, the appellant filed Writ Petition before the Bombay High Court,invoking the provisions of Articles 226/227 of the Constitution and Section482 of the CrPC.

21. After the appellant‘s arrest, remand application was filedbefore the CJM, Raigad. By an order dated 4 November 2020, the CJMBdeclined to grant police custody. Noting that there had been an A‘summary previously, the CJM while rejecting the plea of police custody,remanded the appellant to judicial custody till 18 November 2020. TheState has challenged the order of the CJM declining police custody in arevision before the Additional Sessions Judge, Raigad.

22. The writ petition filed by the appellant before the BombayCHigh Court was heard on 5, 6 and 7 November 2020. On 7 November2020, the High Court reserved orders and granted liberty to the appellantto file an application for regular bail under Section 439 of the CrPC witha direction that it should be heard expeditiously within four days of thedate of filing. Following the above direction, the appellant moved theDSessions Court, Raigad for bail under Section 439 of the CrPC. By itsimpugned judgment and order dated 9 November 2020, the High Courtposted the hearing of the petition filed by the appellant in regard to theprayer of quashing of the FIR on 10 December 2020. While doing so, theHigh Court denied bail to the appellant on the ground that no case hasbeen made out for the exercise of the extra-ordinary jurisdiction and thatEthe appellant had an alternate and efficacious remedy under Section 439of the CrPC.

E. Submissions of counsel

23. Assailing the order of the High Court denying bail to theappellant, Mr Harish N Salve, learned Senior Counsel, submitted that:F

(i)The arrest of the appellant is rooted in malice in fact, whichis evident from the manner in which the appellant as theEditor-in-Chief of Republic TV and R Bharat has beentargeted for his news broadcasts criticizing the Maharashtragovernment and the Maharashtra police;

(ii)Following the acceptance of the police report and the issuanceof an ‘A’ summary on 16 April 2019, the reinvestigation whichhas been ordered at the behest of the Home Minister of theState of Maharashtra is ultra vires. Further, in the absenceof the specific permission of the CJM, it was not open to theHState to conduct reinvestigation; and

(iii)The allegations contained in the FIR, read as they stand, doAnot establish an offence under Section 306 read with Section34 of the IPC. To constitute the offence of abetment theremust exist:

i.A direct or indirect incitement to the commission of acrime;

ii.An active role of the accused in instigating or doing anact facilitating the commission of the crime; and

iii. The existence of proximate relationship in time.

In the present case, it was submitted that even if the allegations inthe FIR are accepted as they stand, no case of abetment is established.It has been submitted that the company of the appellant (ARG) hadentrusted contract for interior work to the deceased‘s company (CDPL).Further, it is not in dispute that while an amount of Rs 5.45 crores hasbeen paid, there was commercial dispute pending in regard to theremaining payment between the two companies. The contents of theFIR also reveal that the deceased was suffering from mental pressure.Furthermore, there is absolutely no allegation that the appellant had eitherinstigated or committed any act to facilitate the commission of the crime.

24. Mr Salve further submitted that the judgment of this Court inHabib Jeelani (supra) has been wrongly interpreted by the High Court.It has been submitted that it was in pursuance of the liberty that wasgranted by the High Court, that an application for bail under Section 439of the CrPC was filed. However, even on 9 November 2020, the PublicProsecutor has filed note before the Sessions Judge that the revisionapplication filed by the State against the order of the CJM should beheard first and it is only thereafter that the application for bail should betaken up. On the basis of the above submissions, it has been urged thatthe appellant has been made target of the vendetta of the Stategovernment, which emerges from the successive events adverted toabove which have taken place since April 2020. Hence, it has been urgedthat there is absolutely no ground to continue the arrest of the appellantand absent any reasonable basis for depriving him of his liberty, an orderfor the grant of bail should have been passed by the High Court. Mr.Salve finally submitted that the interest in preserving the proceduralhierarchy of courts must give way to the need to protect the appellant‘spersonal liberty given the well settled legal position that the default rule is‘bail, not jail’.

A25. Opposing the above submissions, Mr Amit Desai, learned SeniorCounsel appearing on behalf of the second respondent submits that:

(i)The High Court has advisably not enquired into whether:

i.The investigation is tainted by mala fides; and

Bii. The contents of the FIR as they stand make out anoffence within the meaning of Section 306 read withSection 34 of the IPC;

(ii)The High Court declined to express prima facie view onthe issue of mala fides since an opportunity was being grantedCto the State to file its counter. Similarly, the issue as to whetherthe FIR is liable to be quashed would be taken up at the finalhearing on 10 December 2020 and hence the High Court hascorrectly refrained from expressing prima facie view;

(iii)Between 15 October 2020 and 4 November 2020, furtherDinvestigation has been carried out and statements have beenrecorded under Section 164 of the CrPC;

(iv)In accordance with this Court’s judgment in the case ofPraveen Pradhan vs State of Uttaranchal and Ors.[8](“Praveen Pradhan”), instigation to commit suicide has tobe gathered from the circumstances of particular case.EHence, while there may not be direct evidence in regard toinstigation which may have direct nexus to suicide, aninference has to be drawn from the circumstances todetermine whether they were of nature which created asituation in which person felt totally frustrated and endedFup committing suicide. Further, while making determinationas to the quashing of proceedings, the Court has to form onlya tentative opinion and not firm view;

(v)A hierarchy of courts is provided for to consider an applicationfor bail under Section 439 of the CrPC. In the present case,Gthere is no valid basis to by-pass that hierarchy in order togrant relief to the appellant;

(vi)An application for bail was initially filed on behalf of theappellant which was withdrawn after the order for judicial

custody was passed. An application for bail has been filedafter the High Court while reserving judgment granted libertyto do so with direction for its disposal within four days.Hence, it is appropriate that the appellant is relegated to pursuethe remedies under Section 439;

(vii) Prayer (a) in the Writ Petition for the grant of writ of HabeasCorpus was not maintainable in view of the fact that theappellant had been arrested and committed to judicial custody,and the interim application for his release on bail was only inthe context of the prayer for Habeas Corpus;

(viii) During the course of the hearing of the proceedings beforethe Bombay High Court, the Division Bench indicated that ifthe appellant were to file an application under Section 439,appropriate administrative directions of the Chief Justice couldbe obtained for listing it before the Division Bench sinceapplications for bail are placed for hearing before SingleJudge (while the petition was before Division Bench) andthe appellant had only filed an interim application in the pendingWrit Petition for being released on bail;

(ix)Both the issue of whether the appellant has made out casefor quashing the FIR and whether reinvestigation couldhave been ordered at the Home Department of the Statewould be considered by the High Court on 10 December2020;

(x)The High Court has drawn balance between the rights ofthe accused and the family of the deceased victim. Asubstantive Writ Petition has been filed by the informant,stating that it was only through tweet on the social mediathat she had learned of the A‘ summary and that she had notbeen heard before the order was passed by the Magistrateaccepting the police report;

(xi)Even when A‘ Summary has been accepted in terms ofPara 219(3) of the Bombay Police Manual, there is norestraint on further investigation being carried out by theInvestigating Officer under Section 173(8) of the CrPC. AnA‘ summary postulates that there was no completedinvestigation. Hence, requiring prior judicial sanction as

920SUPREME COURT REPORTS

Aprecondition for conducting further investigation after the filingof an A‘ summary will impede the ability of investigatingauthorities to effectively perform their role. Such course ofaction is also permissible in view of the decision of this Courtin Vinubhai Haribhai Malaviya vs State of Gujarat[9]; and

B(xii) The High Court was justified in coming to the conclusion thatthere was nothing extraordinary in the facts of the presentcase to shock the conscience of the Court so as to takerecourse to its extraordinary jurisdiction under Article 226 todirect the release of the appellant on interim bail. Any otherview would lead to the jurisdiction of the High Court underCArticle 226 being extended to grant the remedy of anapplication for bail, which is already available under Section439 of the CrPC.

26. In the same vein as the submissions which have been urged onbehalf of the second respondent by Mr Amit Desai, Mr Kapil Sibal, learnedDSenior Counsel appearing on behalf of the first respondent, has submittedthat the High Court has been justified in coming to the conclusion thatthere was no warrant to interfere in the course of the investigation in thepresent case. Mr Sibal also argued that Mr Salve has wrongly focusedon other cases implicating the appellant in the course of his arguments.ELearned Senior Counsel has urged that the appellant must pursue hisremedy in accordance with law under Section 439 of the CrPC for whichthe liberty has been granted by the High Court. Further, Mr Sibal submittedthat an A‘ summary is in fact not closure report and investigation doesnot stand concluded. Hence, he submitted that the Investigating Officerwas within jurisdiction in carrying out further investigation. Finally, MrFSibal argued that while he is alive to the fact that the personal liberty ofthe appellant is at stake in the present case, this Court does refuse tointerfere in many cases exhibiting similar features. Therefore, he arguedthat this Court should stay its hand in the present case.

27. Mr CU Singh, learned Senior Counsel appearing on behalf ofGthe fifth respondent, the informant, has joined the submissions of the firstand second respondents in opposing these appeals. It was submitted that:

(i)After the order of judicial remand on 4 November 2020, anapplication for bail was filed on behalf of the appellant andwithdrawn;H9 2019 SCC OnLine SC 1346

(ii)On 7 November 2020, the Sessions Court issued notice onthe revision application filed by the State against the orderdeclining to grant remand to police custody;

(iii)On 7 November 2020, the High Court posted the proceedingsfor pronouncement of judgment on 9 November 2020 andgranted liberty to the appellant to file an application for bail.Thereafter, an application for bail was filed on 8 November2020 by the appellant. Special Leave Petition was filed inthis Court thereafter. The High Court has correctly declinedto enquire into the plea for quashing the FIR and the allegedmala fides on the ground that counters are still to be filed;and

(iv)On 15 October 2020, the Crime Detection Unit intimated theCJM that it was commencing further investigation on whichthe CJM has made an endorsement that it had been “notedand filed”. Statements were recorded under Section 164 ofthe CrPC. Section 173(8) of the CrPC confers broad powerof further investigation on the Investigating Officer. Havingregard to the context of an A‘ summary, this power hasbeen legitimately exercised in the present case. The exerciseof the power of further investigation under Section 173(8) ofthe CrPC would not require judicial sanction.

28. Together with the present Civil Appeal, this Court has alsoheard submissions in two companion Civil Appeals. In the two companionappeals, submissions have been made before this Court by Mr GopalSankaranarayanan and Mr Mukul Rohatgi, learned Senior Counsel.

F. Criminal Appeal No. 743 of 2020 (Arising out of SLP(Crl) No. 5599 of 2020)

29. Mr Gopal Sankaranarayanan, learned Senior Counsel, submittedthat the appeal has been filed by the sister of Mr Feroz Shaikh who hasbeen named as an accused.

30. Mr Feroz Shaikh is Director in iCastX Technologies PrivateLimited. In 2016, iCastX Technologies hired the services of M/s AtosIndia Private Limited for the work of construction, renovation andrefurbishing of their office premises at Andheri East, Mumbai. Atos IndiaPrivate Limited in turn sub-contracted the work to CDPL. Hence, it hasbeen submitted that there was privity of relationship between iCastX

ATechnologies and CDPL. Mr Sankaranarayanan submitted that the threeappellants represent the interest of three distinct individuals connectedwith three different companies.

31. Mr Sankaranarayanan has supported the submissions on theessential requirements of Section 107 of the IPC by relying on theBdecisions in Madan Mohan Singh vs State of Gujarat[10], Sunil BhartiMittal vs Central Bureau of Investigation[11] and Common Causevs Union of India[12] (“Common Cause”). Mr. Sankaranarayanan furtherargued that there was no reference about his client in the FIR filed on 5May 2018 at the behest of the informant. Finally, he relied on this Court‘sjudgment in Vineet Narain and Ors. vs Union of India and Ors.[13] toCurge that executive interference in the course of an investigation orprosecution is impermissible.

G. Criminal Appeal No. 744 of 2020 (Arising out of SLP (Crl)No. 5600 of 2020)

D32. Mr Mukul Rohatgi, learned Senior Counsel appearing on behalfof the appellant, submitted that admittedly all the three accused named inthe FIR are unconnected. The appellant is Director in private limitedcompany by the name of SmartWork Business Centre Private Limitedwith less than one per cent of the shareholding standing in his own name.

E33. The company which has offices in New Delhi and Kolkatahad engaged the services of several vendors/contractors in order to furnishtheir business centre at Pune, one of whom was CDPL and purchaseorder of Rs 4.17 crores was issued. Thereafter, there were substantialdelays and discrepancies in the execution of the work by CDPL whichled to an exchange of mails. Furthermore, an invoice of over Rs 5 croresFwas raised including an amount of Rs 83.02 lacs towards GST. Pursuantto this, payment of Rs 4.40 crores was made but there was genuinecommercial dispute between the two companies in relation to the remainingamount.

34. It has been submitted that on the face of it, there is no basis inGthe FIR to even remotely implicate the appellant in the alleged offencesunder Section 306 read with Section 34 of the IPC. There is not even an

10 (2010) 8 SCC 62811 (2015) 4 SCC 60912 (2018) 5 SCC 1H13 (1988) 1 SCC 226

indication of personal interaction or connection between the appellantand the deceased. Furthermore, civil suit regarding the disputed debtbetween their companies is pending.

35. The invocation of the jurisdiction of the High Court underArticles 226/227 of the Constitution and Section 482 of the CrPC is insupport of two distinct reliefs. The first relief is for writ of habeascorpus. This relief has been claimed on the basis that the arrest andconsequent detention of the appellant was due to reinvestigation whichwas commenced after placing reliance on the letter dated 26 May 2020of the Home Department of the Government of Maharashtra to theDirector General of Police. The submission is that once the CJM acceptedthe report submitted by the Investigating Officer and issued an A‘summary on 16 April 2019, it was not open to the Investigating Officerto commence reinvestigation without judicial sanction.

36. Joining issue with this submission is the argument of the Statethat the power of the investigating officer to order further investigationunder Section 173(8) of the CrPC is independent of the jurisdiction of theMagistrate. In the view of the State, Section 4 of the Bombay PoliceAct, 1951 entrusts the superintendence of the police force to it and in theexercise of that power, it was legitimately open to the Home Departmentto direct further investigation (though the letter uses the expression re-investigation‘) to be conducted based on the complaint of the victim thatthe offence had not been properly investigated. Moreover, the State hasrelied on the provisions of Section 36 of the CrPC under which policeofficers superior in rank to an officer in charge of police station areentitled to exercise the same powers throughout the local area to whichthey are appointed.

37. According to the appellant, when proceedings before the HighCourt came to be instituted, an order of remand had not been passed andit was only subsequently on the night of 4 November 2020 that an ordergranting judicial custody was passed by the CJM. Be that as it may, theHigh Court has recorded that prayer (a) for the issuance of writ ofHabeas Corpus was not pressed on behalf of the appellant. Once theprayer for writ of habeas corpus was not pressed (as the High Courtrecords), it was unnecessary for the High Court to devote several pagesin the impugned judgment on discussing the issue.

38. The remaining prayer before the High Court was for quashingthe FIR. Mr Rohatgi submitted that the order of arrest is illegal and the

Aappellant is entitled to have it so declared by invoking the jurisdictionunder Article 226 of the Constitution and Section 482 of the CrPC. Itwas urged that the power under Section 173(8) is to cause “furtherinvestigation” and no power has been vested to either reinvestigate orcause fresh investigation to be made. The power to reinvestigate or tocause fresh investigation, it was urged, is vested only in the constitutionalBcourts. Contrary to the provisions of Section 173(8), it was urged, theHome Department in its letter to the deputy Inspector General has directeda reinvestigation. In the present case, the communication of the HomeDepartment makes it abundantly clear that reinvestigation was orderedunder the authority of the State Home Minister which, according to theCsubmission, is ultra vires the provisions of law. Mr Rohatgi hasemphasised that the application for remand makes it clear that what isordered was reinvestigation, since the application has repeatedly usedthe expression “comprehensive reinvestigation” and the fact that“reinvestigation has become necessary”.D39. Finally, it was urged that the order of the Home Minister in theState was issued on 26 May 2020 whereas the investigation commencedon 15 October 2020 and the arrest was made on 4 November 2020 inrespect of an FIR lodged in May 2018 on which an A‘ summary hadbeen accepted on 16 April 2019. In sum and substance, it has beensubmitted that after the order of closure on 16 April 2019, reinvestigationEcould not have been ordered in the case. The arrest has been termedunlawful.

H. Jurisdiction of the High Court under Article 226 andSection 482 CrPCF40. While considering the rival submissions, it is essential for the

F40. While considering the rival submissions, it is essential for thepurpose of the present appeals to elucidate on the nature of the jurisdictionthat is vested in the High Court under Article 226 of the Constitution andSection 482 of the CrPC. This issue must be analysed from the perspectiveof the position that the proceeding before the High Court, after the prayerfor the grant of writ of Habeas Corpus was given up, is for quashingGthe FIR being CR No. 0059 of 2018 lodged on 5 May 2018.

41. The High Court has dwelt at length on the decision of thisCourt in Habib Jeelani (supra). The High Court observed that the powersto quash “are to be exercised sparingly and that too, in rare and appropriatecases and in extreme circumstances to prevent abuse of process of law”.HApplying this principle, the High Court opined:

“45. The principle stated therein will equally apply to the exerciseof this Court’s power under Article 226 of the Constitution of Indiaand section 482 of the Code of Criminal Procedure whileconsidering the applications for bail since the petitioner is alreadyin Judicial custody. The legislature has provided specific remedyunder Section 439 Cr.P.C. for applying for regular bail. Havingregard to the alternate and efficacious remedy available to thepetitioner under section 439 of the Code of Criminal Procedure,this Court has to exercise judicial restraint while entertainingapplication in the nature of seeking regular bail in petition filedunder Article 226 of the Constitution of India read with section482 of Code of Criminal Procedure.”

On the basis of the above foundation, the High Court has declinedto even prima facie enquire into whether the allegations contained in theFIR, read as they stand, attract the provisions of Section 306 read withSection 34 of the IPC. In its view, since the petition was being posted forhearing on 10 December 2020, it was not inclined to enquire into thisaspect of the case and the appellant would be at liberty to apply forregular bail under Section 439.

42. Now, it is in this background that it becomes necessary for thisCourt to evaluate what, as matter of principle, is the true import of thedecision of this Court in Habib Jeelani (supra). This was case where,on the basis of report under Section 154 off the CrPC, an FIR wasregistered for offences punishable under Sections 147, 148, 149 and 307of the IPC. Challenging the initiation of the criminal action, the inherentjurisdiction of the High Court to quash an FIR was invoked. The HighCourt (as paragraph 2 of the judgment of this Court in Habib Jeelani(supra) indicates) expressed its “disinclination to interfere on the groundthat it was not appropriate to stay the investigation of the case”. It was inthis background that the following issue was formulated in the firstparagraph of the judgment of this Court, speaking through Justice DipakMisra (as he then was), for consideration:

“1. The seminal issue that arises for consideration in this appeal,by special leave, is whether the High Court while refusing toexercise inherent powers under Section 482 of the Code of CriminalProcedure (CrPC) to interfere in an application for quashment ofthe investigation, can restrain the investigating agency not to arrestthe accused persons during the course of investigation.”

ABetween paragraphs 11 and 15, this Court then evaluated the natureof the jurisdiction under Section 482 of the CrPC or under Article 226 ofthe Constitution for quashing an FIR and observed:

“11. Once an FIR is registered, the accused persons can alwaysapproach the High Court under Section 482 CrPC or under Article226 of the Constitution for quashing of the FIR. In Bhajan Lal[State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992SCC (Cri) 426 : AIR 1992 SC 604] the two-Judge Bench afterreferring to Hazari Lal Gupta v. Rameshwar Prasad [HazariLal Gupta v. Rameshwar Prasad, (1972) 1 SCC 452 : 1972 SCC(Cri) 208] , Jehan Singh v. Delhi Admn. [Jehan Singh v. DelhiAdmn., (1974) 4 SCC 522 : 1974 SCC (Cri) 558 : AIR 1974 SC1146] , Amar Nath v. State of Haryana [Amar Nath v. State ofHaryana, (1977) 4 SCC 137 : 1977 SCC (Cri) 585] , KurukshetraUniversity v. State of Haryana [Kurukshetra University v. Stateof Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] , State ofBihar v. J.A.C. Saldanha [State of Bihar v. J.A.C. Saldanha,(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] ,State of W.B. v. Swapan Kumar Guha [State of W.B. v. SwapanKumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982SC 949], Nagawwa v. Veeranna Shivalingappa Konjalgi[Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC736 : 1976 SCC (Cri) 507 : AIR 1976 SC 1947] , MadhavraoJiwajirao Scindia v. Sambhajirao Chandrojirao Angre[Madhavrao Jiwajirao Scindia v. Sambhajirao ChandrojiraoAngre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Biharv. Murad Ali Khan [State of Bihar v. Murad Ali Khan, (1988) 4SCC 655 : 1989 SCC (Cri) 27 : AIR 1989 SC 1] and some otherauthorities that had dealt with the contours of exercise of inherentpowers of the High Court, thought it appropriate to mention certaincategory of cases by way of illustration wherein the extraordinarypower under Article 226 of the Constitution or inherent powerunder Section 482 CrPC could be exercised either to prevent abuseof the process of any court or otherwise to secure the ends ofjustice. The Court also observed that it may not be possible to laydown any precise, clearly defined and sufficiently channelised andinflexible guidelines or rigid formulae and to give an exhaustive listof myriad cases wherein such power should be exercised.

12. The illustrations given by the Court need to be recapitulated:(Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] , SCC pp.378-79, para 102)

“(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their face value andaccepted in their entirety do not prima facie constitute any offenceor make out case against the accused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do not disclose acognizable offence, justifying an investigation by police officersunder Section 156(1) of the Code except under an order of aMagistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same donot disclose the commission of any offence and make out caseagainst the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only non-cognizable offence,no investigation is permitted by police officer without an order ofa Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which no prudentperson can ever reach just conclusion that there is sufficientground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the Act concerned (under which criminalproceeding is instituted) to the institution and continuance of theproceedings and/or where there is specific provision in the Codeor the Act concerned, providing efficacious redress for thegrievance of the aggrieved party.

(7) Where criminal proceeding is manifestly attended withmala fides and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with view to spite him due to private and personal grudge.”

It is worthy to note that the Court has clarified that the saidparameters or guidelines are not exhaustive but only illustrative.Nevertheless, it throws light on the circumstances and situationswhere the Court’s inherent power can be exercised.

13. There can be no dispute over the proposition that inherentpower in matter of quashment of FIR has to be exercisedsparingly and with caution and when and only when such exerciseis justified by the test specifically laid down in the provision itself.There is no denial of the fact that the power under Section 482CrPC is very wide but it needs no special emphasis to state thatconferment of wide power requires the Court to be more cautious.It casts an onerous and more diligent duty on the Court.

14. In this regard, it would be seemly to reproduce passagefrom Kurukshetra University [Kurukshetra University v. Stateof Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] whereinChandrachud, J. (as his Lordship then was) opined thus: (SCC p.451, para 2)

“2. It surprises us in the extreme that the High Court thoughtthat in the exercise of its inherent powers under Section 482 of theCode of Criminal Procedure, it could quash first informationreport. The police had not even commenced investigation into thecomplaint filed by the Warden of the University and no proceedingat all was pending in any court in pursuance of the FIR. It ought tobe realised that inherent powers do not confer an arbitraryjurisdiction on the High Court to act according to whim or caprice.That statutory power has to be exercised sparingly, withcircumspection and in the rarest of rare cases.”15. We have referred to the said decisions only to stress uponthe issue, how the exercise of jurisdiction by the High Court in aproceeding relating to quashment of FIR can be justified. We repeateven at the cost of repetition that the said power has to be exercisedin very sparing manner and is not to be used to choke or smotherthe prosecution that is legitimate. The surprise that wasexpressed almost four decades ago in Kurukshetra Universitycase [Kurukshetra University v. State of Haryana, (1977) 4SCC 451 : 1977 SCC (Cri) 613] compels us to observe that weare also surprised by the impugned order.”

43. Thereafter, this Court noted that “the High Court has notreferred to allegations made in the FIR or what has come out in theinvestigation”. While on the one hand, the High Court declined inexercising its jurisdiction under Section 482 to quash the proceedings, itnonetheless directed the police not to arrest the appellants during thependency of the investigation. It was in this context that this Court observedthat the High Court had, while dismissingthe applications under Section482, passed orders that if the accused surrenders before the trialMagistrate, he shall be admitted to bail on such terms and conditions as itwas deemed fit and appropriate. After adverting to the earlier decision inHema Mishra vs State of UP[14], this Court observed:

“23. We have referred to the authority in Hema Mishra [HemaMishra v. State of U.P., (2014) 4 SCC 453 : (2014) 2 SCC (Cri)363] as that specifically deals with the case that came from theState of Uttar Pradesh where Section 438 CrPC has been deleted.It has concurred with the view expressed in Lal KamlendraPratap Singh [Lal Kamlendra Pratap Singh v. State ofU.P., (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330] . The saiddecision, needless to say, has to be read in the context of the Stateof Uttar Pradesh. We do not intend to elaborate the said principleas that is not necessary in this case. What needs to be stated hereis that the States where Section 438 CrPC has not been deletedand kept on the statute book, the High Court should be well advisedthat while entertaining petitions under Article 226 of the Constitutionor Section 482 CrPC, it exercises judicial restraint. We may hastento clarify that the Court, if it thinks fit, regard being had to theparameters of quashing and the self-restraint imposed by law, hasthe jurisdiction to quash the investigation and may pass appropriateinterim orders as thought apposite in law, but it is absolutelyinconceivable and unthinkable to pass an order of the present naturewhile declining to interfere or expressing opinion that it is notappropriate to stay the investigation. This kind of order is reallyinappropriate and unseemly. It has no sanction in law. The courtsshould oust and obstruct unscrupulous litigants from invoking theinherent jurisdiction of the Court on the drop of hat to file anapplication for quashing of launching an FIR or investigation andthen seek relief by an interim order. It is the obligation of the Courtto keep such unprincipled and unethical litigants at bay.”

A44. The above decision thus arose in situation where the HighCourt had declined to entertain petition for quashing an FIR underSection 482 of the CrPC. However, it nonetheless directed theinvestigating agency not to arrest the accused during the pendency ofthe investigation. This was held to be impermissible by this Court. On theother hand, this Court clarified that the High Court if it thinks fit, havingBregard to the parameters for quashing and the self- restraint imposed bylaw, has the jurisdiction to quash the investigation “and may passappropriate interim orders as thought apposite in law”. Clearly therefore,the High Court in the present case has misdirected itself in declining toenquire prima facie on petition for quashing whether the parametersCin the exercise of that jurisdiction have been duly established and if sowhether case for the grant of interim bail has been made out. Thesettled principles which have been consistently reiterated since thejudgment of this Court in State of Haryana vs Bhajan Lal[15] (“BhajanLal”) include situation where the allegations made in the FIR or thecomplaint, even if they are taken at their face value and accepted in theirDentirety, do not prima facie constitute any offence or make out caseagainst the accused. This legal position was recently reiterated in adecision by two-judge Bench of this Court in Kamal ShivajiPokarnekar vs State of Maharashtra[16].

I. Prima Facie evaluation of the FIR and the grant of bailE

45. The striking aspect of the impugned judgment of the HighCourt spanning over fifty-six pages is the absence of any evaluationeven prima facie of the most basic issue. The High Court, in other words,failed to apply its mind to fundamental issue which needed to beconsidered while dealing with petition for quashing under Article 226 ofFthe Constitution or Section 482 of the CrPC. The High Court, by itsjudgment dated 9 November 2020, has instead allowed the petition forquashing to stand over for hearing month later, and therefore declinedto allow the appellant‘s prayer for interim bail and relegated him to theremedy under Section 439 of the CrPC. In the meantime, liberty hasGbeen the casualty. The High Court having failed to evaluate prima faciewhether the allegations in the FIR, taken as they stand, bring the casewithin the fold of Section 306 read with Section 34 of the IPC, this Courtis now called upon to perform the task.

15 1992 Supp. 1 SCC 335H16 (2019) 14 SCC 350

46. Before we evaluate the contents of the FIR, reference toSection 306 of the IPC is necessary. Section 306 stipulates that if aperson commits suicide “whoever abets the commission of such suicide”shall be punished with imprisonment extending up to 10 years[17]. Section107 is comprised within Chapter V of the IPC, which is titled “OfAbetment”. Section 107 provides:

“107. Abetment of thing.—A person abets the doing of thing,who— First.—Instigates any person to do that thing; or

Secondly.—Engages with one or more other person or persons inany conspiracy for the doing of that thing, if an act or illegal omissiontakes place in pursuance of that conspiracy, and in order to thedoing of that thing; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doingof that thing.

Explanation 1.—A person who, by willful misrepresentation, or bywillful concealment of material fact which he is bound to disclose,voluntarily causes or procures, or attempts to cause or procure, athing to be done, is said to instigate the doing of that thing.

Illustration A, public officer, is authorised by warrant from aCourt of Justice to apprehend Z, B, knowing that fact and alsothat is not Z, willfully represents to that is Z, and therebyintentionally causes to apprehend C. Here abets by instigationthe apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of thecommission of an act, does anything in order to facilitate thecommission of that act, and thereby facilitates the commissionthereof, is said to aid the doing of that act.”

47. The first segment of Section 107 defines abetment as theinstigation of person to do particular thing. The second segment definesit with reference to engaging in conspiracy with one or more otherpersons for the doing of thing, and an act or illegal omission in pursuanceof the conspiracy. Under the third segment, abetment is founded onintentionally aiding the doing of thing either by an act or omission.These provisions have been construed specifically in the context of Section

17 306. Abetment of suicide.—If any person commits suicide, whoever abets thecommission of such suicide, shall be punished with imprisonment of either descriptionfor term which may extend to ten years, and shall also be liable to fine.

A306 to which reference is necessary in order to furnish the legalfoundation for assessing the contents of the FIR. These provisions havebeen construed in the earlier judgements of this Court in State of WestBengal vs Orilal Jaiswal[18], Randhir Singh vs State of Punjab[19],Kishori Lal vs State of MP[20] (“Kishori Lal”) and KishangiriMangalgiri Goswami vs State of Gujarat[21]. In Amalendu Pal vs StateBof West Bengal[22], Justice Mukundakam Sharma, speaking for twojudge Bench of this Court and having adverted to the earlier decisions,observed:

“12…It is also to be borne in mind that in cases of allegedabetment of suicide there must be proof of direct or indirect actsCof incitement to the commission of suicide. Merely on the allegationof harassment without there being any positive action proximateto the time of occurrence on the part of the accused which led orcompelled the person to commit suicide, conviction in terms ofSection 306 IPC is not sustainable.”DThe Court noted that before person may be said to have abettedthe commission of suicide, they “must have played an active role by anact of instigation or by doing certain act to facilitate the commission ofsuicide”. Instigation, as this Court held in Kishori Lal (supra), “literallymeans to provoke, incite, urge on or bring about by persuasion to doEanything”. In S S Chheena vs Vijay Kumar Mahajan[23], two judgeBench of this Court, speaking through Justice Dalveer Bhandari, observed:

“25. Abetment involves mental process of instigating person orintentionally aiding person in doing of thing. Without positiveact on the part of the accused to instigate or aid in committingsuicide, conviction cannot be sustained. The intention of theFlegislature and the ratio of the cases decided by this Court is clearthat in order to convict person under Section 306 IPC there hasto be clear mens rea to commit the offence. It also requires anactive act or direct act which led the deceased to commit suicideseeing no option and that act must have been intended to push theGdeceased into such position that he committed suicide.”18 (1994) 1 SCC 7319 (2004) 13 SCC 12920 (2007) 10 SCC 79721 (2009) 4 SCC 5222 (2010) 1 SCC 707H23 (2010) 12 SCC 19048. Madan Mohan Singh vs State of Gujarat[24] was specificallya case which arose in the context of petition under Section 482 of theCrPC where the High Court had dismissed the petition for quashing anFIR registered for offences under Sections 306 and 294(B) of the IPC.In that case, the FIR was registered on complaint of the spouse of thedeceased who was working as driver with the accused. The driver hadbeen rebuked by the employer and was later found to be dead on havingcommitted suicide. suicide note was relied upon in the FIR, the contentsof which indicated that the driver had not been given fixed vehicleunlike other drivers besides which he had other complaints including thededuction of 15 days‘ wages from his salary. The suicide note named theaccused–appellant. In the decision of two judge Bench of this Court,delivered by Justice V S Sirpurkar, the test laid down in Bhajan Lal(supra) was applied and the Court held:

“10. We are convinced that there is absolutely nothing in this suicidenote or the FIR which would even distantly be viewed as anoffence much less under Section 306 IPC. We could not findanything in the FIR or in the so-called suicide note which could besuggested as abetment to commit suicide. In such matters theremust be an allegation that the accused had instigated the deceasedto commit suicide or secondly, had engaged with some other personin conspiracy and lastly, that the accused had in any way aidedany act or illegal omission to bring about the suicide.

11. In spite of our best efforts and microscopic examination of thesuicide note and the FIR, all that we find is that the suicide note isa rhetoric document in the nature of departmental complaint. Italso suggests some mental imbalance on the part of the deceasedwhich he himself describes as depression. In the so-called suicidenote, it cannot be said that the accused ever intended that thedriver under him should commit suicide or should end his life anddid anything in that behalf. Even if it is accepted that the accusedchanged the duty of the driver or that the accused asked him notto take the keys of the car and to keep the keys of the car in theoffice itself, it does not mean that the accused intended or knewthat the driver should commit suicide because of this.”

Dealing with the provisions of Section 306 of the IPC and the meaningof abetment within the meaning of Section 107, the Court observed:

A“12. In order to bring out an offence under Section 306 IPC specificabetment as contemplated by Section 107 IPC on the part of theaccused with an intention to bring about the suicide of the personconcerned as result of that abetment is required. The intentionof the accused to aid or to instigate or to abet the deceased tocommit suicide is must for this particular offence under SectionB306 IPC. We are of the clear opinion that there is no question ofthere being any material for offence under Section 306 IPC eitherin the FIR or in the so-called suicide note.”

The Court noted that the suicide note expressed state of anguishof the deceased and “cannot be depicted as expressing anything intentionalCon the part of the accused that the deceased might commit suicide”.Reversing the judgement of the High Court, the petition under Section482 was allowed and the FIR was quashed.

49. In concurring judgment delivered by one of us (DhananjayaY Chandrachud J) in the decision of the Constitution Bench in CommonDCause (supra), the provisions of Section 107 were explained with thefollowing observations:

“458. For abetting an offence, the person abetting must haveintentionally aided the commission of the crime. Abetment requiresan instigation to commit or intentionally aiding the commission of aEcrime. It presupposes course of conduct or action which (in thecontext of the present discussion) facilitates another to end life.Hence abetment of suicide is an offence expressly punishable underSections 305 and 306 IPC.”

50. More recently in M Arjunan vs State (represented by itsFInspector of Police)[25], two judge Bench of this Court, speakingthrough Justice R.Banumathi, elucidated the essential ingredients of theoffence under Section 306 of the IPC in the following observations:

“7. The essential ingredients of the offence under Section 306IPC are: (i) the abetment; (ii) the intention of the accused to aidGor instigate or abet the deceased to commit suicide. The act of theaccused, however, insulting the deceased by using abusive languagewill not, by itself, constitute the abetment of suicide. There shouldbe evidence capable of suggesting that the accused intended by

such act to instigate the deceased to commit suicide. Unless theingredients of instigation/abetment to commit suicide are satisfiedthe accused cannot be convicted under Section 306 IPC.”

51. Similarly, in another recent judgment of this Court in Ude Singhand Ors. vs State of Haryana[26], two judge Bench of this Court,speaking through Justice Dinesh Maheshwari, expounded on theingredients of Section 306 of the IPC, and the factors to be considered indetermining whether case falls within the ken of the aforesaid provision,in the following terms:

“38. In cases of alleged abetment of suicide, there must be proofof direct or indirect act/s of incitement to the commission of suicide.It could hardly be disputed that the question of cause of suicide,particularly in the context of an offence of abetment of suicide,remains vexed one, involving multifaceted and complex attributesof human behaviour and responses/reactions. In the case ofaccusation for abetment of suicide, the Court would be looking forcogent and convincing proof of the act/s of incitement to thecommission of suicide. In the case of suicide, mere allegation ofharassment of the deceased by another person would not sufficeunless there be such action on the part of the accused whichcompels the person to commit suicide; and such an offending actionought to be proximate to the time of occurrence. Whether personhas abetted in the commission of suicide by another or not, couldonly be gathered from the facts and circumstances of each case.

39. For the purpose of finding out if person has abettedcommission of suicide by another, the consideration would be ifthe accused is guilty of the act of instigation of the act of suicide.As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, inciteor encourage to do an act. If the persons who committed suicidehad been hypersensitive and the action of accused is otherwisenot ordinarily expected to induce similarly circumstanced personto commit suicide, it may not be safe to hold the accused guilty ofabetment of suicide. But, on the other hand, if the accused by hisacts and by his continuous course of conduct creates situation

Awhich leads the deceased perceiving no other option except tocommit suicide, the case may fall within the four-corners of Section306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws thevictim to commit suicide, the accused may be held guilty ofabetment of suicide. The question of mens rea on the part of theBaccused in such cases would be examined with reference to theactual acts and deeds of the accused and if the acts and deeds areonly of such nature where the accused intended nothing morethan harassment or snap show of anger, particular case may fallshort of the offence of abetment of suicide. However, if the accusedCkept on irritating or annoying the deceased by words or deeds untilthe deceased reacted or was provoked, particular case may bethat of abetment of suicide. Such being the matter of delicateanalysis of human behaviour, each case is required to be examinedon its own facts, while taking note of all the surrounding factorshaving bearing on the actions and psyche of the accused and theDdeceased.”Similarly, in Rajesh vs State of Haryana[27], two judge Bench ofthis Court, speaking through Justice L. Nageswara Rao, held as follows:

“9. Conviction under Section 306 IPC is not sustainable on theEallegation of harassment without there being any positive actionproximate to the time of occurrence on the part of the accused,which led or compelled the person to commit suicide. In order tobring case within the purview of Section 306 IPC, there must bea case of suicide and in the commission of the said offence, theperson who is said to have abetted the commission of suicide mustFhave played an active role by an act of instigation or by doingcertain act to facilitate the commission of suicide. Therefore, theact of abetment by the person charged with the said offence mustbe proved and established by the prosecution before he could beconvicted under Section 306 IPC.”

GIn recent decision of this Court in Gurcharan Singh vs State ofPunjab[28], three judge Bench of this Court, speaking through JusticeHrishikesh Roy, held thus:

27 Criminal Appeal No. 93 of 2019 decided on 18 January 2019H28 Criminal Appeal No. 40 of 2011 decided on 1 October 2020

“15. As in all crimes, mens rea has to be established. To prove theoffence of abetment, as specified under Sec 107 of the IPC, thestate of mind to commit particular crime must be visible, todetermine the culpability. In order to prove mens rea, there has tobe something on record to establish or show that the appellantherein had guilty mind and in furtherance of that state of mind,abetted the suicide of the deceased.”

52. In Vaijnath Kondiba Khandke vs State of Maharashtraand Ors.[29], two judge Bench of this Court, speaking through JusticeU.U. Lalit, dealt with an appeal against the rejection of an applicationunder Section 482 of the CrPC, for quashing an FIR registered underSections 306 and 506 read with Section 34 of the IPC. person servingin the office of the Deputy Director of Education Aurangabad hadcommitted suicide on 8 August 2017. His wife made complaint to thepolice that her husband was suffering from mental torture as his superiorswere getting heavy work done from her husband. This resulted in himhaving to work from 10 AM to 10 PM and even at odd hours and onholidays. The specific allegation against the appellant was that he hadstopped the deceased’s salary for one month and was threatening thedeceased that his increment would be stopped. This Court noted thatthere was no suicide note, and the only material on record was in theform of assertions made by the deceased‘s wife in her report to thepolice. The Court went on to hold that the facts on record were inadequateand insufficient to bring home the charge of abetment of suicide underSection 306 of the IPC. The mere factum of work being assigned by theappellant to the deceased, or the stoppage of salary for month, was notenough to prove criminal intent or guilty mind. Consequently, proceedingsagainst the appellant were quashed.

53. On the other hand, we must also notice the decision in PraveenPradhan (supra) where two judge Bench of this Court, speaking throughJustice B.S. Chauhan, dismissed an appeal against the rejection of anapplication under Section 482 of the CrPC by the High Court for quashinga criminal proceeding, implicating an offence under Section 306 of theIPC. The suicide note which was left behind by the deceased showed,as this Court observed, that “the appellant perpetually humiliated, exploitedand demoralised the deceased, who was compelled to indulge in wrongfulpractices at the workplace, which hurt his self- respect tremendously.

AThe Court noted that the appellant always scolded the deceased andtried to always force the deceased to resign. Resultantly, the Courtobserved:

“19. Thus, the case is required to be considered in the light of theaforesaid settled legal propositions. In the instant case, allegedBharassment had not been casual feature, rather remained matterof persistent harassment. It is not case of driver; or manhaving an illicit relationship with married woman, knowing thatshe also had another paramour; and therefore, cannot be comparedto the situation of the deceased in the instant case, who was aqualified graduate engineer and still suffered persistent harassmentCand humiliation and additionally, also had to endure continuous illegaldemands made by the appellant, upon non- fulfilment of which, hewould be mercilessly harassed by the appellant for prolongedperiod of time. He had also been forced to work continuously forlong durations in the factory, vis-à-vis other employees which oftenDeven entered to 16-17 hours at stretch. Such harassment, coupledwith the utterance of words to the effect, that, “had there beenany other person in his place, he would have certainly committedsuicide” is what makes the present case distinct from theaforementioned cases. Considering the facts and circumstancesof the present case, we do not think it is case which requires anyEinterference by this Court as regards the impugned judgment andorder [Criminal Miscellaneous Application No. 420 of 2006, decidedon 5-1-2012 (Utt)] of the High Court. The appeal is, therefore,dismissed accordingly.”The contents of the FIR therefore indicated that the deceased hadFbeen subjected to harassment persistently and continuously and this wascoupled by words used by the accused which led to the commission ofsuicide.

54. In Narayan Malhari Thorat vs Vinayak Deorao Bhagat[30],this Court, speaking through Justice U.U. Lalit, reversed the judgment ofGa Division Bench of the High Court which had quashed criminalproceedings in exercise of the jurisdiction under Section 482. This was acase where the FIR was registered pursuant to the information receivedfrom the appellant. The FIR stated that the son and daughter-in-law of

the appellant were teachers in Zila Parishad School. The respondentused to call the daughter-in-law of the appellant on the phone and used toharass her. Moreover, despite the efforts of the son of the appellant, therespondent did not desist from doing so. This Court noted:

“12. We now consider the facts of the present case. There aredefinite allegations that the first respondent would keep on callingthe wife of the victim on her mobile and keep harassing her whichallegations are supported by the statements of the mother and thewife of the victim recorded during investigation. The record showsthat 3-4 days prior to the suicide there was an altercation betweenthe victim and the first respondent. In the light of these facts,coupled with the fact that the suicide note made definite allegationagainst first respondent, the High Court was not justified in enteringinto question whether the first respondent had the requisite intentionto aid or instigate or abet the commission of suicide. At this juncturewhen the investigation was yet to be completed and charge-sheet,if any, was yet to be filed, the High Court ought not to have goneinto the aspect whether there was requisite mental element orintention on part of the respondent.”

The above observations of the Court clearly indicated that therewas specific allegation in the FIR bearing on the imputation that therespondent had actively facilitated the commission of suicide bycontinuously harassing the spouse of the victim and in failing to rectifyhis conduct despite the efforts of the victim.

55. Now in this backdrop, it becomes necessary to advert brieflyto the contents of the FIR in the present case. The FIR recites that thespouse of the informant had company carrying on the business ofarchitecture, interior design and engineering consultancy. According tothe informant, her husband was over the previous two years “havingpressure 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 appellantand spoken to his accountant for the payment of money. Apart from theabove statements, it has been stated that the deceased left behind asuicide note stating that his “money is stuck and following owners ofrespective companies are not paying our legitimate dues”. Prima facie,on the application of the test which has been laid down by this Court in aconsistent line of authority which has been noted above, it cannot be saidthat the appellant was guilty of having abetted the suicide within the

Ameaning of Section 306 of the IPC. These observations, we must note,are prima facie at this stage since the High Court is still to take up thepetition for quashing. Clearly however, the High Court in failing to noticethe contents of the FIR and to make prima facie evaluation abdicatedits role, functions and jurisdiction when seized of petition under Section482 of the CrPC. The High Court recited the legal position that theBjurisdiction to quash under Section 482 has to be exercised sparingly.These words, however, are not meaningless incantations, but have to beassessed with reference to the contents of the particular FIR before theHigh Court. If the High Court were to carry out prima facie evaluation,it would have been impossible for it not to notice the disconnect betweenCthe FIR and the provisions of Section 306 of the IPC. The failure of theHigh Court to do so has led it to adopting position where it left theappellant to pursue his remedies for regular bail under Section 439. TheHigh Court was clearly in error in failing to perform duty which isentrusted to it while evaluating petition under Section 482 albeit at theinterim stage.D

56. The petition before the High Court was instituted under Article226 of the Constitution and Section 482 of the CrPC. While dealing withthe petition under section 482 for quashing the FIR, the High Court hasnot considered whether prima facie the ingredients of the offence havebeen made out in the FIR. If the High Court were to have carried out thisEexercise, it would (as we have held in this judgment) have been apparentthat the ingredients of the offence have not prima facie been established.As consequence of its failure to perform its function under Section482, the High Court has disabled itself from exercising its jurisdictionunder Article 226 to consider the appellant’s application for bail. In

Fconsidering such an application under Article 226, the High Court mustbe circumspect in exercising its powers on the basis of the facts of eachcase.However, the High Court should not foreclose itself from the exerciseof the power when citizen has been arbitrarily deprived of their personalliberty in an excess of state power.G57. While considering an application for the grant of bail underArticle 226 in suitable case, the High Court must consider the settledfactors which emerge from the precedents of this Court. These factorscan be summarized as follows:

(i)The nature of the alleged offence, the nature of the accusationHand the severity of the punishment in the case of conviction;

(ii)Whether there exists reasonable apprehension of theAaccused tampering with the witnesses or being threat tothe complainant or the witnesses;

(iii)The possibility of securing the presence of the accused atthe trial or the likelihood of the accused fleeing from justice;

(iv)The antecedents of and circumstances which are peculiar tothe accused;

(v)Whether prima facie the ingredients of the offence are madeout, on the basis of the allegations as they stand, in the FIR;and

(vi)The significant interests of the public or the State and othersimilar considerations.

58. These principles have evolved over period of time and emanatefrom the following (among other) decisions: Prahlad Singh Bhati vsNCT, Delhi[31]; Ram Govind Upadhyay vs Sudarshan Singh[32]; Stateof UP vs Amarmani Tripathi[33]; Prasanta Kumar Sarkar vs AshisChatterjee[34]; Sanjay Chandra vs CBI[35]; and P. Chidambaram vsCentral Bureau of Investigation[36].

59. These principles are equally applicable to the exercise ofjurisdiction under Article 226 of the Constitution when the court is calledupon to secure the liberty of the accused. The High Court must exerciseits power with caution and circumspection, cognizant of the fact that thisjurisdiction is not ready substitute for recourse to the remedy of bailunder Section 439 of the CrPC. In the backdrop of these principles, ithas become necessary to scrutinize the contents of the FIR in the caseat hand. In this batch of cases, prima facie evaluation of the FIR doesnot establish the ingredients of the offence of abetment of suicide underSection 306 of the IPC. The appellants are residents of India and do notpose flight risk during the investigation or the trial. There is noapprehension of tampering of evidence or witnesses. Taking these factors

31 (2001) 4 SCC 28032 (2002) 3 SCC 59833 (2005) 8 SCC 2134 (2010) 14 SCC 49635 (2012) 1 SCC 4036 Criminal Appeal No. 1605 of 2019 decided on 22 October 2019

[2020] 11 S.C.R.

Ainto consideration, the order dated 11 November 2020 envisaged therelease of the appellants on bail.

J. Human liberty and the role of Courts

60. Human liberty is precious constitutional value, which isundoubtedly subject to regulation by validly enacted legislation. As such,Bthe citizen is subject to the edicts of criminal law and procedure. Section482 recognizes the inherent power of the High Court to make such ordersas are necessary to give effect to the provisions of the CrPC “or preventabuse of the process of any Court or otherwise to secure the ends ofjustice”. Decisions of this court require the High Courts, in exercisingCthe jurisdiction entrusted to them under Section 482, to act withcircumspection. In emphasising that the High Court must exercise thispower with sense of restraint, the decisions of this Court are foundedon the basic principle that the due enforcement of criminal law shouldnot be obstructed by the accused taking recourse to artifices andstrategies. The public interest in ensuring the due investigation of crimeDis protected by ensuring that the inherent power of the High Court isexercised with caution. That indeed is one – and significant - end of thespectrum. The other end of the spectrum is equally important: therecognition by Section 482 of the power inhering in the High Court toprevent the abuse of process or to secure the ends of justice is valuableEsafeguard for protecting liberty. The Code of Criminal Procedure of 1898was enacted by legislature which was not subject to constitutional rightsand limitations; yet it recognized the inherent power in Section 561A.Post- Independence, the recognition by Parliament[37] of the inherent powerof the High Court must be construed as an aid to preserve theconstitutional value of liberty. The writ of liberty runs through the fabricFof the Constitution. The need to ensure the fair investigation of crime isundoubtedly important in itself, because it protects at one level the rightsof the victim and, at more fundamental level, the societal interest inensuring that crime is investigated and dealt with in accordance withlaw. On the other hand, the misuse of the criminal law is matter ofGwhich 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 ofthe specific ground which was raised before it by the appellant that hewas being made target as part of series of occurrences which havebeen taking place since April 2020. The specific case of the appellant isthat he has been targeted because his opinions on his television channelare unpalatable to authority. Whether the appellant has established acase for quashing the FIR is something on which the High Court willtake final view when the proceedings are listed before it but we areclearly of the view that in failing to make even prima facie evaluationof the FIR, the High Court abdicated its constitutional duty and functionas protector of liberty. Courts must be alive to the need to safeguardthe public interest in ensuring that the due enforcement of criminal law isnot obstructed. The fair investigation of crime is an aid to it. Equally it isthe duty of courts across the spectrum – the district judiciary, the HighCourts and the Supreme Court – to ensure that the criminal law does notbecome weapon for the selective harassment of citizens. Courts shouldbe alive to both ends of the spectrum – the need to ensure the properenforcement of criminal law on the one hand and the need, on the other,of ensuring that the law does not become ruse for targeted harassment.Liberty across human eras is as tenuous as tenuous can be. Libertysurvives by the vigilance of her citizens, on the cacophony of the mediaand in the dusty corridors of courts alive to the rule of (and not by) law.Yet, much too often, liberty is casualty when one of these componentsis found wanting.

61. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singhare undoubtedly right in submitting that the procedural hierarchy of courtsin matters concerning the grant of bail needs to be respected. However,there was failure of the High Court to discharge its adjudicatory functionat two levels – first in declining to evaluate prima facie at the interimstage in petition for quashing the FIR as to whether an arguable casehas been made out, and secondly, in declining interim bail, as consequenceof its failure to render prima facie opinion on the first. The High Courtdid have the power to protect the citizen by an interim order in petitioninvoking Article 226. Where the High Court has failed to do so, thisCourt would be abdicating its role and functions as constitutional courtif it refuses to interfere, despite the parameters for such interferencebeing met. The doors of this Court cannot be closed to citizen who isable to establish prima facie that the instrumentality of the State is beingweaponized for using the force of criminal law. Our courts must ensurethat they continue to remain the first line of defense against the deprivationof the liberty of citizens. Deprivation of liberty even for single day isone day too many. We must always be mindful of the deeper systemicimplications of our decisions.

A62. It would be apposite to extract the observations made, albeit ina dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in adecision of three judge bench in Romila Thapar vs Union of India[38]:

“[T]he basic entitlement of every citizen who is faced withallegations of criminal wrongdoing, is that the investigative processBshould be fair. This is an integral component of the guarantee againstarbitrariness under Article 14 and of the right to life and personalliberty under Article 21. If this Court were not to stand by theprinciples which we have formulated, we may witness soulfulrequiem to liberty.”

CThe decision was dissent in the facts of the case. The view ofthe leading majority judgment is undoubtedly the view of the court, whichbinds us. However, the principle quoted above is in line with the precedentsof this court.

63. More than four decades ago, in celebrated judgment in StateDof Rajasthan, Jaipur vs Balchand[39], Justice Krishna Iyer pithilyreminded us that the basic rule of our criminal justice system is ‘bail, notjail’[40]. The High Courts and Courts in the district judiciary of India mustenforce this principle in practice, and not forego that duty, leaving thisCourt to intervene at all times. We must in particular also emphasise therole of the district judiciary, which provides the first point of interface toEthe citizen. Our district judiciary is wrongly referred to as the ‘subordinatejudiciary’. It may be subordinate in hierarchy but it is not subordinate interms of its importance in the lives of citizens or in terms of the duty torender justice to them. High Courts get burdened when courts of firstinstance decline to grant anticipatory bail or bail in deserving cases. ThisFcontinues in the Supreme Court as well, when High Courts do not grantbail or anticipatory bail in cases falling within the parameters of the law.The consequence for those who suffer incarceration are serious. Commoncitizens without the means or resources to move the High Courts or thisCourt languish as undertrials. Courts must be alive to the situation as itprevails on the ground – in the jails and police stations where humanG

38(2018) 10 SCC 75339(1977) 4 SCC 308

40These words of Justice Krishna Iyer are not isolated silos in our jurisprudence,but have been consistently followed in judgments of this Court for decades.Some of these judgments are: State of U.P. vs Amarmani Tripathi, (2005) 8HSCC 21 and Sanjay Chandra vs CBI, (2012) 1 SCC 40.

dignity has no protector. As judges, we would do well to remind ourselvesthat it is through the instrumentality of bail that our criminal justice system‘sprimordial interest in preserving the presumption of innocence finds itsmost eloquent expression. The remedy of bail is the “solemn expressionof the humaneness of the justice system”[41]. Tasked as we are with theprimary responsibility of preserving the liberty of all citizens, we cannotcountenance an approach that has the consequence of applying this basicrule in an inverted form. We have given expression to our anguish in acase where citizen has approached this court. We have done so inorder to reiterate principles which must govern countless other faceswhose voices should not go unheard.

64. We would also like to take this opportunity to place on recorddata sourced from the National Judicial Data Grid (“NJDG”) on thenumber of bail applications currently pending in High Courts and DistrictCourts across India:

65. The data on the NJDG is available in the public realm. TheNJDG is valuable resource for all High Courts to monitor the pendencyand disposal of cases, including criminal cases. For Chief Justices of theHigh Courts, the information which is available is capable of being utilizedas valuable instrument to promote access to justice, particularly inmatters concerning liberty. The Chief Justices of every High Court shouldin their administrative capacities utilize the ICT tools which are placed at

41Arghya Sengupta and Ritvika Sharma, Saharashri and the Supremes‘, (The Wire,23 June 2015) available at <https://thewire.in/economy/saharashri-and-the-supremes>

42For nine High Courts, no separate data is available in relation to pending bailapplications, which are quantified as pending applications simplicitor. Further,for two High Courts, the data is only available for their principal bench and nottheir circuit benches. More granulated data can be accessed at the website of theNJDG, available at <www.njdg.ecourts.gov.in>.

Atheir disposal in ensuring that access to justice is democratized andequitably allocated. Liberty is not gift for the few. Administrative judgesin charge of districts must also use the facility to engage with the Districtjudiciary and monitor pendency. As the data on the NJDG makes clear,there is pressing need for courts across the judicial hierarchy in India toremedy the institutional problem of bail applications not being heard andBdisposed of with expedition. Every court in our country would do well toremember Lord Denning‘s powerful invocation in the first Hamlyn Lecture,titled ‘Freedom under the Law’[43]:

“Whenever one of the judges takes seat, there is one applicationwhich by long tradition has priority over all others. The counselChas but to say, My Lord, I have an application whichconcerns the liberty of the subject‘, and forthwith the judge willput all other matters aside and hear it. …”

It is our earnest hope that our courts will exhibit acute awarenessto the need to expand the footprint of liberty and use our approach as aDdecision-making yardstick for future cases involving the grant of bail.

66. Since the proceedings are pending before the High Court, weclarify that the observations on the facts contained in the present judgmentare confined to determination whether case for grant of interimprotection was made out. Equally, the observations which are containedEin the impugned order of the High Court were also at the interim stageand will not affect the final resolution of the issues which arise and havebeen raised before the High Court.

K. Conclusion

F67. While reserving the judgment at the conclusion of arguments,this Court had directed the release of all the three appellants on bailpending the disposal of the proceedings before the High Court. Thefollowing operative directions were issued on 11 November 2020:

“9 We are of the considered view that the High Court was in errorin rejecting the applications for the grant of interim bail. WeGaccordingly order and direct that Arnab Manoranjan Goswami,

43Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures,First Series, available at <https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Free dom_Under_the_Law_1.pdf>.H

Feroz Mohammad Shaikh and Neetish Sarda shall be released oninterim bail, subject to each of them executing personal bond inthe amount of Rs 50,000 to be executed before the JailSuperintendent. They are, however, directed to cooperate in theinvestigation and shall not make any attempt to interfere with theongoing investigation or with the witnesses.

10 The concerned jail authorities and the Superintendent of Police,Raigad are directed to ensure that this order is complied withforthwith.

11 certified copy of this order shall be issued during the courseof the day.”

68. The interim protection which has been granted to the aboveaccused by the order dated 11 November 2020 shall continue to remainin operation pending the disposal of the proceedings before the HighCourt and thereafter for period of four weeks from the date of thejudgment of the High Court, should it become necessary for all or any ofthem to take further recourse to their remedies in accordance with law.

69. The appeals are accordingly disposed of.

70. Pending application(s), if any, stand disposed of.

Ankit Gyan

Appeals disposed of.