Arnab Ranjan Goswami v. Union of India: An order bad in law?

The Indian media has yet again stirred up a tornado of controversy and this time it has taken the Supreme Court in its eye. The Editor-in-Chief of Republic TV, Mr Arnab Goswami, moved the Supreme Court under Article 32[1] seeking an order for quashing more than 16 FIRs filed against him for allegedly making defamatory and communal statements on his show. In a rather odd decision, the Apex Court has granted a 3-week relief to Goswami from any coercive action being taken against him to provide him with an opportunity to seek anticipatory bail and to amend the petition to include a prayer for consolidation for all FIRs into a single one. The court has also put a stay on proceedings related to all FIRs except one.

In this short article, we are going to critically analyse the impugned order and we seek to answer the critical questions emanating from it – Can the court consolidate FIRs into a single one while exercising its powers under Articles 32?

Transfer Jurisdiction of the Supreme Court under the CrPC:

Under Section 406 of the Code of Criminal Procedure [“CrPC”], the Supreme Court can direct any particular case or appeal to be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.[2] By the application of this provision, FIRs or criminal complaints can be essentially clubbed or consolidated and the same was ordered by the Apex Court in the case of Swami Ram Dev v. Shyam Rajak Etc.[3]

However, the Supreme Court has observed in the case of Captain Amarinder Singh v. Prakash Singh Badal[4] that a justifiable and reasonable apprehension of a miscarriage of justice is required for the application of Section 406.

In the present case, while staying the proceedings related to all FIRs but one, the court has also shown an inclination towards combining or clubbing all the FIRs in a single one. This is problematic because the petitioner, Mr Goswami, has not invoked the original jurisdiction of the court under Section 406 of the CrPC. We have explained why not invoking the original jurisdiction is problematic later.

Moreover, in our opinion, the circumstances of the present case do not mandate either transfer or consolidation of FIRs because the filing of multiple FIRs across the country doesn’t prima facie support a reasonable apprehension of a miscarriage of justice. One may argue that that prima facie asking a person to defend multiple charges in multiple venues is a miscarriage of justice but it should be noted that in the case of Abdul Nazar Madani v. State of Tamil Nadu[5], the court observed that miscarriage of justice under Section 406 is more about ensuring that the trial or investigation is free and fair without any bias.

However, the court also said that the convenience of the parties may also be valid considerations. But we believe that the convenience of witnesses and the prosecutors should take precedence over convenience of the accused as the Apex Court observed in the case of Romila Thapar v. Union of India[6] that the investigation should not be conducted at the behest of the accused.[7] The petition filed by Mr Goswami also claimed that the FIRs filed against him are frivolous as a majority of them have been filed by workers of the Congress Party. However, this is also not a sufficient reason to reasonably apprehend a miscarriage of justice as in the Captain Amarinder Singh Case, the court also observed that, “it is a well-established proposition of law that a criminal law prosecution, if otherwise, justifiable or based upon adequate evidence does not become vitiated on account of mala fides or political mandate of the informant or the complainant.”

Can the Supreme Court consolidate FIRs while exercising its powers under Article 32?

Mr Goswami invoked the Writ Jurisdiction of the Apex Court under Article 32 of the Constitution. So the million-dollar question is whether the Supreme Court has the power to transfer or club FIRS or criminal complaints? According to precedents, the answer is negative.

In the case of V.K. Sharma v. Union of India,[8] the petitioners moved the Supreme Court under Article 32 to consolidate all the pending complaints and cases. The court, however, rejected the petition and observed that the petitioners can move the High Court seeking consolidation of all the pending complaints and cases in the state. It is interesting to note that the court explicitly stated that the order will not be a binding precedent even though the court did not exercise its powers under Article 142[9]. Giving a reason for the same, the court observed that the order was passed keeping in mind the peculiar factual scenario of the case. The fact that the court declared that the judgment will not be a binding precedent shows that the Supreme Court doesn’t have the power to consolidate or club FIRs under its Writ Jurisdiction.

In another case of State of Punjab v. Rajesh Syal[10], the Punjab & Haryana High Court ordered for the consolidation of FIRs while exercising powers in its Writ Jurisdiction while relying on the judgment in V.K Sharma. The case went on appeal and while setting aside the High Court’s judgment, the 3 Judge Bench of Supreme Court observed that the judgment in V.K. Sharma was not in accordance with law as the court explicitly declared that it will not be a binding precedent. While overruling the V.K. Sharma judgment, the court also observed that the judgment would have not been in accordance with law even if it was delivered under the powers conferred by Article 142.

These precedents make it clear that the court’s order in the present case is not in accordance with law as the court was bound to follow the 3 Judge Bench judgment in Rajesh Syal.

Why can’t the power to transfer or consolidate FIRs be exercised constitutionally?

From the cases of V.K. Sharma & Rajesh Syal, it is clear that there is an understanding that this power cannot be exercised constitutionally[11]. However, a question arises that why can’t it be exercised constitutionally if it can be exercised under the provisions of the CrPC?

The answer to this question lies in the fact that the Writ Jurisdiction of the Supreme Court is meant for the protection of the rights conferred by Part III of the Constitution and if people start invoking the Writ Jurisdiction of the court to seek relief in matters for which provisions already exist in the CrPC, it will amount to misuse and belittlement of the powers conferred to the court under its Writ Jurisdiction. Moreover, if the courts issues such order it becomes a binding precedent thus rendering the provisions of the procedural code redundant.

In the case of Rajesh Syal, the court also observed that even if an order is passed for the transfer or clubbing of FIRs while invoking its special powers under Article 142, it would be not in accordance with the law. This observation is a clear indication that the court was of the opinion that the order for transfer or consolidation of FIRs cannot be passed while invoking the extraordinary jurisdiction of the court.

This view can be supported by referring to the judgement of the Apex Court in the case of Supreme Court Bar Association v. Union of India[12], where the court said that the purpose of the powers conferred under Article 142 is to supplement the law and not to supplant the law.

Going by the golden rule governing the powers under Article 142, If a petitioner who is unable to claim relief under Section 406 of the CrPC because of his petition being devoid of merits, granting him such relief under Article 142 would amount to supplanting of law and not supplementing of law.

As mentioned earlier, Mr Goswami, in the present case, did not have sufficient grounds for claiming a transfer of the FIR by virtue of the observations made in the cases of Captain Amarinder Singh, Abdul Nazar Madani & Romila Thapar and the court would have been wrong even if they ordered for such transfer by invoking its powers under Article 142.

[1] Article 32 of the Constitution of India.

[2] Code of Criminal Procedure, 1974, §406.

[3] Swami Ram Dev v. Shyam Rajak TRANSFER PETITION (CRL.) NO(S). 175-178 OF 2014

[4] Amarinder Singh v. Prakash Singh Badal (2009) 6 SCC 260.

[5] Abdul Nazar Madani v. State of Tamil Nadu (2006) SCC 204.

[6] Romila Thapar v. Union of India (2018) 10 SCC 753.

[7] Namit Saxena, Can the Supreme Court under Article 32 of the Constitution club FIRs against an accused?, BAR AND BENCH, (Apr 24, 2020, 6:10 PM), https://www.barandbench.com/columns/can-supreme-court-under-article-32-of-the-constitution-club-firs-against-an-accused

[8] V.K. Sharma vs. Union of India (2000) 9 SCC 449.

[9] Article 142 of the Constitution of India.

[10] State of Punjab v. Rajesh Syal AIR (2002) SC 3687.

[11] Namit Saxena, Can the Supreme Court under Article 32 of the Constitution club FIRs against an accused?, BAR AND BENCH, (Apr 24, 2020, 6:10 PM), https://www.barandbench.com/columns/can-supreme-court-under-article-32-of-the-constitution-club-firs-against-an-accused

[12] Supreme Court Bar Association v. Union of India (1998) 4 SCC 409.


ABOUT THE AUTHOR

Mohd. Omair Usmani

Mohd. Omair Usmani

Mohd. Omair Usmani is a first-year student at National Law University, Jodhpur with a special interest in Constitutional Law along with Criminal Jurisprudence.

Udayan Dwivedi

Udayan Dwivedi

Udayan Dwivedi is a first-year law student from National Law University, Jodhpur with a special interest in Constitutional Law and Criminal Jurisprudence.

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