Even before the concept of ‘welfare state’ became mainstream among the modern nations, the ideas of preservation of life and liberty of an individual were not unknown to society. Now that we have leaped out of laissez faire, the sustenance of humanity clings on the thread of protection woven around it by the words of law, which the administrative machinery is duty bound to make functional. For this tedious task, administrative discretionary powers have been bestowed upon the executors of the functions of state. The faith of people in the system is the very fuel that keeps the system functional. The thread that binds the system together must not be used to strangulate the freedom of people or to suppress the voice of the Republic.
While discharging its well-defined duties, an executor, say police, is expected to observe not just the law and procedure, but also a strict code of conduct. It has been repeatedly said that absolute power corrupts absolutely, and therefore, the system of checks and balances was incorporated in the Constitution of India to prevent misuse of such powers.
One may recall the infamous ‘Gag Order’ passed by the Assistant Commissioner of Police, Maharashtra for banning criticism of the Government of Maharashtra. The intent of the Mahavikas Aghadi was clear, it wanted not to serve, but to rule. How can you, a mere citizen, criticise the greatest Chief Minister? No sir, not in Maharashtra.
However, the underconfident Chief Minister and his cabinet found a challenge in the loud-mouthed and self-styled Journalist Arnab Goswami. The flamboyant voice naturally led to a crack or two in the thin ice on which the throne of the Sultan was precariously perched.
HANSA Research Group, in a writ petition before the Hon’ble High Court of Bombay, has deposed that the Mumbai Police is pressurising them to give a statement incriminating Arnab’s News Channel, Republic TV. Also, an intimidating letter was issued by the Assistant Secretary of Legislative Assembly, barring Republic TV from approaching the Supreme Court of India against the short notice issued by Assembly. Has this ever happened in independent India where legislators attempted to obstruct a private person from moving the court? This emerges as a blatant attack on a citizen’s right to seek judicial intervention granted to him by the Constitution itself and that too by an organ of the state.
“Every person, even with the most frivolous of claims, is entitled to approach the court.”
We have been witness to many a self-centred leaders who think that power is their heirloom, but very rarely has a person has been stopped from resorting to legal recourse.
Now, one should think why is the government of Maharashtra resorting to such extra-judicial actions that clearly exhibit over reach of power? If we are to connect the dots, few days ago Shri Narain Rane, ex-Chief Minister of State, had alleged that a minister of the incumbent Maharashtra Government is involved in the death of one Sushant Singh Rajput. Save Republic, no other news channel reported, let alone discussed, this rather serious claim and Arnab was getting louder ad infinitum to make sure this development reached the masses.
The Commissioner Parambir Singh was called out by Member of Parliament Sadhvi Pragya Thakur and yet again it was Arnab who not just reported it, but played it in a loop for the world to see. An interview with Thakur brought to light various illegalities of the investigation conducted by Mumbai Police. Arnab targeted issues that most media houses were readily brushing under the carpet, be it Palghar lynching or the Hathras Controversy. It is also interesting to note that the fire by the Police increased almost immediately after Republic TV did a sting operation on Congress aide who spoke of initiating large scale riots in Hathras as Rahul and Priyanka Gandhi-Vadra conducted photo ops while meeting the victim’s family.
In response to the masks falling off, Maharashtra Government constituted a 40 member team (reported by Times of India) to, perhaps, silence Arnab Goswami. They suddenly unearthed a closed matter of abetment of suicide. The position of law in closure is that the investigation officer has to file the Final Report with a prayer of closure. YES A PRAYER.
The aggrieved party is entitled to get a notice of the report and to be heard before the magistrate decides the prayer of closure. In the present matter, the magistrate had failed to give notice of the same to the aggrieved party and the matter was closed in 2019.
“A court has the jurisdiction to decide wrongly”
That is to say, even if the court failed to give notice to the aggrieved person, the order is final unless quashed or reversed by a superior court. The order of closure in the present matter has not been quashed or reversed by any court. The Alibaug Police, under the garb of section 173(8) of the Criminal Procedure Code, is trying to reopen the case. The said section empowers the court to submit additional chargesheet in an already open case. The action of the Alibaug Police is extrajudicial and, therefore, amounts to subverting the jurisdiction of the court.
It appears nowadays that the petition of Corpus Cum Causa has lost its seriousness in the eyes of the presiding officers of court. No doubt such petition is not maintainable against the judicial order of remand, but that does not preclude a Constitutional Bench from examining the content of the said judicial order of remand. The Court’s favouritism towards the state, and the trivialisation of human liberty becomes apparent when the sitting judge goes into rules of practice to know about the nature of closure (‘A’ Closure, ‘B’ Closure and ‘C’ Closure), but refuse to acknowledge the well settled principles of law which details the scope of judicial interference, that a Constitutional Court must be awake where the life and liberty of a person is being compromised at the hands of the State.
The bottom-line is that the acceptance of a closure report by the magistrate accrues a right in favour of the Accused and such right maybe read into the fundamental rights under Article 21. Any arrest in contravention of such right is illegal, extrajudicial, condemnable and unsustainable in the eyes of law. Such arrest, without an attempt to establish corpus delicti before a competent court for reopening the case, is illegal ab initio. The manner of arrest, that is to say, depriving him of a medical check, restraining him from wearing his shoes, manhandling him, storming his place of residence armed to the teeth, intimidating and using force against the family are all a show of strength.
How many times did the Hon’ble Judges bring up ‘vacations’ in their interaction with the counsels? That shows where thier heart lies.
If only natural justice was a real thing.
By: Prashant Kumar Mishra & Rashika Raina (Advocates)
