Arnab Goswami’s Case: Bail Not Jail Is The Governing Principle, Says Supreme Court
Birds fly over the Supreme Court of India in New Delhi, India. (Photographer: T. Narayan/Bloomberg)

Arnab Goswami’s Case: Bail Not Jail Is The Governing Principle, Says Supreme Court

The Supreme Court of India on Friday asked courts across the country to enforce the principle of bail as a rule and jail as an exception while examining cases involving personal liberty issues.

Common citizens without the means or resources to move high courts or this court languish as undertrials. Courts must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector, said the top court in its judgment.

The observations were part of the detailed reasons for granting interim bail to Republic TV’s Arnab Goswami. The apex court also made observations on the manner in which the case was evaluated by the Bombay High Court.

In the judgment, authored by Justice DY Chandrachud, the top court noted that in declining bail to Goswami, the Bombay High Court had declined to examine the prima facie merit of the case against him. It said that the approach by the high court resulted in ‘’liberty being the casualty’’.

The top court’s comments come at a time when there has been a public debate on the handling of personal liberty cases by courts in recent times including the handling of some habeas corpus petitions by the top court itself.

High Court Wrong In Denying Interim Bail: Supreme Court

Goswami was arrested on November 4 over an FIR registered against him alleging abetment of suicide. After the arrest, Goswami was sent to 14 day judicial custody. He filed a writ petition in the Bombay High Court seeking release on bail and also quashing of the FIR under section 482 Code of Criminal Procedure, which allows high courts to pass orders to secure the ends of justice.

The high court declined the request for bail saying that Goswami was in judicial custody at the time and was free to file for bail under regular procedure as per section 439 of the Code of Criminal Procedure.

Goswami challenged this order before the apex court arguing on multiple points including that his arrest was rooted in malice and that the allegations in the FIR do not establish the offence under section 306 [abetment of suicide] of the India Penal Code.

The top court found some merit in Goswami’s arguments.

The Supreme Court noted that while high courts should exercise their extraordinary jurisdiction to quash an FIR sparingly, they should examine its contents first.

In its order, the top court said, the high court erred in not examining whether there was even a prima facie case against Goswami before it reached its conclusion of not granting him bail.

While dealing with a petition to quash an FIR, the high court declined to evaluate at the interim stage whether a prima facie case of abetment of suicide was made against him, the apex court pointed out.

It then went on to examine the contents of the FIR noting that its observations were prima facie in nature as the petition for quashing of the FIR is still pending before the high court.

If the high court were to carry out a prima facie evaluation, it would have been impossible for it not to notice the disconnect between the FIR and the provisions of Section 306 [abetment of suicide] of the IPC. 
Supreme Court Judgment

The Supreme Court said that the high court by not examining whether there was a prima facie case against him and leaving Goswami to pursue regular bail abdicated its constitutional duty and function as a protector of liberty.

‘Bail Is Rule And Jail Exception'

In the judgment, the Supreme Court went back four decades to cite the 1977 judgment of Justice Krishna Iyer to note that the most basic principle of criminal law is that the rule is bail, not jail.

It noted that while it is important that a fair investigation is carried out to protect the interests of the victims, the high courts and district courts must also be alive to the issue of the misuse of the criminal law.

Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.
Supreme Court Judgement

The judgment went on to observe that when the district courts do not grant anticipatory or regular bail in deserving cases then those end up burdening the high courts. The same continues to do the Supreme Court when the high courts fail to do the same.

As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system
Supreme Court of India

The top court highlighted the large number of pending bail applications in various courts and asked the courts to monitor and address the pendency of these applications.

As of today over 90,000 bail pleas are pending in the high courts across the country whereas 1,96,861 are pending in district court, the judgment said citing the publically available data.

‘It is our earnest hope that our courts will exhibit acute awareness of the need to expand the footprint of liberty and use our approach as a decision-making yardstick for future cases involving the grant of bail,’ the apex court said in conclusion.

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