Bombay High Court
Arg Outlier Media Private Limited ... vs The State Of Maharashtra And Ors on 24 March, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally
signed by
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Vishwanath
Vishwanath S. Sherla
S. Sherla Date:
2021.03.24
12:31:16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530 CRIMINAL APPELLATE SIDE
CRIMINAL WRIT PETITION NO.663 OF 2021
WITH
INTERIM APPLICATION NO.525 OF 2021
... Applicants/
ARG Outlier Media Private Limited & another
Petitioners
Vs.
State of Maharashtra & others ... Respondents
WITH
INTERIM APPLICATION NO.524 OF 2021
IN
CRIMINAL WRIT PETITION NO.663 OF 2021
... Applicants/
ARG Outlier Media Private Limited & another
Petitioners
Vs.
State of Maharashtra & others ... Respondents
WITH
INTERIM APPLICATION NO.523 OF 2021
IN
CRIMINAL WRIT PETITION NO.663 OF 2021
... Applicants/
ARG Outlier Media Private Limited & another
Petitioners
Vs.
State of Maharashtra & others ... Respondents
WITH
INTERIM APPLICATION NO.522 OF 2021
IN
CRIMINAL WRIT PETITION NO.663 OF 2021
Bhagyawant Punde
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... Applicants/
ARG Outlier Media Private Limited & another
Petitioners
Vs.
State of Maharashtra & others ... Respondents
WITH
INTERIM APPLICATION NO.521 OF 2021
IN
CRIMINAL WRIT PETITION NO.663 OF 2021
... Applicants/
ARG Outlier Media Private Limited & another
Petitioners
Vs.
State of Maharashtra & others ... Respondents
WITH
INTERIM APPLICATION NO.261 OF 2021
IN
CRIMINAL WRIT PETITION NO.663 OF 2021
Umesh Chandrakant Mishra ... Applicant
IN THE MATTER BETWEEN:
ARG Outlier Media Private Limited & another ... Petitioners
Vs.
State of Maharashtra & others ... Respondents
Mr.Ashok Mundargi, Senior Advocate with Mr. Niranjan Mundargi, Mr. Zoeb
Cutlerywala, Mr. Vikram Kamath, Mr. Pinak Bhagwat i/by. Phonix Legal for
Petitioner and Applicant in IA Nos. 521/2021, 522/2021, 523/2021,
524/2021.
Bhagyawant Punde
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Mr. Gaurav Borse and Ms. Dhinika Shah for Applicant/Intervener in IA No.
261/2021.
Mr. Anil C. Singh, ASG a/w. Mr. Aditya Thakkar, Mr. D.P. Singh for UOI.
Mr. Deepak Thakre, PP a/w. Mr. Prakash Shah, Mr. Ankur Pahade, M and Mr.
Vijendra Mishra for Respondent-State.
CORAM: S.S. SHINDE &
MANISH PITALE, JJ.
DATED: 24th MARCH, 2021
P.C.:
1. Heard Mr. Ashok Mundargi, learned Senior Advocate appearing
for the petitioners. It is vehemently submitted on behalf of the petitioners
that the FIR registered in the present case bearing CR No. 143 of 2020 dated
6th October 2020, registered at Kandivali Police Station, under Sections 409,
420, 120-B and 34 of the Indian Penal Code, 1860 and the investigation
undertaken in pursuance of the same, is a wholly malafide action on the
part of the respondents, in so far as the petitioners before this Court are
concerned.
2. It is further submitted that the petitioners have not been named
as accused in the said FIR and yet in the chargesheets filed in pursuance of
the investigation, the petitioners have been categorized as 'suspects', which
is a term unknown to criminal jurisprudence and finds no mention in the
Cr.P.C. The whole purpose of the exercise undertaken by the respondents is
to keep the petitioners on tenterhooks and to harass them by keeping alive
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threat of coercive action against them, even when they have not been
named as accused in the said FIR or the chargesheets.
3. The FIR is based on a complaint allegedly lodged by the
complainant claiming that bribes were given to certain individuals in whose
houses barometers had been installed for ascertaining the time duration for
which various channels were watched. The allegation is that such bribes
were given so as to increase Television Rating Points (TRP) of certain
channels and that the accused were involved in this exercise. The learned
Senior Advocate has placed much stress on the press conference held by the
Respondent No. 4- Commissioner of Police, Mumbai on 08.10.2020, wherein
channel run by the petitioners was specifically named as being allegedly
involved in the aforesaid TRP scam. It is submitted that neither in the
complaint nor in the material that has come on record on the basis of
investigation carried out till today and even after filing two chargesheets,
there is anything to link the petitioners with the alleged TRP scam. On this
basis, it is submitted that whole exercise carried out by the respondents, in
so far petitioners are concerned is malafide and unsustainable, particularly
when the respondent-state and its officers claim that further investigation is
underway.
4. Mr. Mundargi, learned Senior Advocate has invited attention of
this Court specifically to a clause in the chargesheet which reads as follows:-
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"Clause 12. Particulars of accused persons-not charge-
sheeted (suspect)
vkjksihi= u BsoysY;k vkjksihapk ri'khy ¼la'k;hr½
(I) *Name..................Whether Verified .................
uko% fjiCyhd Vh-Ogh- PkWuYlps IkMrkGysys fdaok dk;
[email protected]
[email protected] R;kaps
lacaf/kr O;Drh"
It is highlighted that the said clause pertaining to "suspects"
which translates as owner/managers of Republic TV channel and/or persons
associated with it, is a clause which gives a very wide scope for the
respondents to continue to harass the petitioners, even when there is not
even an iota of material against them till today. It is further submitted by Mr.
Mundargi, learned Senior Advocate that according to the respondents,
investigation has been undertaken and it continues till today from
06.10.2020 and evidently there is no material yet found against the
petitioners. On this basis, it is submitted that the purpose of putting such a
clause in the chargesheet appears to be to continue to harass the petitioners
with such open ended investigation, which does not seem to be culminating
towards finality, despite filing of two chargesheets. On this basis, it is
submitted that significant questions arise for consideration in the present
writ petition before this Court and that therefore, interim relief deserves to
be granted during the pendency of this writ petition.
Bhagyawant Punde
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5. We have considered the aforesaid contentions raised on behalf
of Petitioners and we have heard Mr. Mundargi, learned Senior Advocate
appearing for petitioners and Mr. Deepak Thakre, learned PP appearing for
Respondent-State. On a specific query put to Mr. Thakre, learned PP, as to
whether the Respondent-State desires to continue further investigation into
the matter, it is submitted that further investigation is indeed contemplated.
It is also submitted that as on today the petitioners are not arraigned as
accused in respect of aforesaid FIR. Since, the investigating officer states that
further investigation is to be undertaken in the matter, we are of the opinion
that the present petition deserves to be admitted and Rule needs to be
granted on the following questions that arise for consideration:
1. Whether the prayers made on behalf of the petitioners for
quashing the aforesaid FIR can be entertained by this Court,
in the absence of petitioners being arraigned as accused in
respect of the said FIR?
2. In the absence of Petitioners being named as accused in
respect of aforesaid FIR, whether the petition can be
entertained for the prayers made on behalf of petitioners
pertaining transfer of investigation to the Central Bureau of
Investigation and direction not to take any coercive steps
against the petitioners, as also their employees and agents in
connection with the said FIR?
Bhagyawant Punde
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3. Whether the respondents can be permitted to keep sword of
investigation hanging over the heads of petitioners for
indefinite period without petitioners being arraigned as
accused in respect of the said FIR?
4. Whether the Investigation Officer can continue the
investigation by invoking said widely worded clause in the
chargesheet which reads as follows-
"Clause 12. Particulars of accused persons-not charge-
sheeted (suspect)
vkjksihi= u BsoysY;k vkjksihapk ri'khy ¼la'k;hr½
(I) *Name..................Whether Verified .................
uko% fjiCyhd Vh-Ogh- PkWuYlps IkMrkGysys fdaok dk;
[email protected]
[email protected] R;kaps
lacaf/kr O;Drh"
(The said clause pertaining to "suspects" is translated as
"owner/managers of Republic TV channel and/or persons
associates with it").
5. Whether the prayers made in the writ petition can be entertained
only on the ground of serious malafide alleged against the
respondents, when the petitioners are admittedly not arraigned
as accused in respect of said FIR?
6. We propose to admit the present petition on the aforesaid
questions of law.
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7. Hence,
"Rule".
Rule peremptorily returnable on 28th June 2021 at 2.30 p.m.
8. On Rule Mr. Deepak Thakre, waives service of notice on behalf
of Respondent Nos. 1 to 4.
9. Mr. D.P. Singh waives service of notice on behalf of Respondent
No. 6.
10. In addition to service of notice through Court, the Petitioners
shall serve a private notice by Registered Post A.D. and/or by Courier service
and/or by hand delivery or by e-mail/fax on the Respondent No. 5 and shall
file affidavit of service with tangible proof before the returnable date.
11. On the question of interim relief, Mr. Mundargi, learned Senior
Advocate appearing for the petitioners reiterated the above mentioned
contentions pertaining to the aspect of serious malafide against the
respondents. He further submitted that there is real apprehension of
Petitioner No. 2 regarding coercive action likely to be taken against him by
the respondents, in view of past action of respondents in so far as the said
petitioner is concerned. It was emphasized that the respondent-State had
caused arrest of Petitioner No. 2 in respect of an earlier case pertaining to
suicide of one Mr. Anvay Naik, even after competent Court i.e. the Court of
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Chief Judicial Magistrate, Raigad-Alibaud had closed the case by order dated
16.04.2019, on the basis of closure report filed by the investigating officer. It
was submitted that said closed case was subsequently reopened, without
seeking leave of the Court and the Petitioner No. 2 was picked up and
arrested. He has eventually released by the order of the Hon'ble Supreme
Court in that regard. According to the learned Senior Advocate appearing for
the Petitioners, the Respondent-State is acting in a most malafide manner
and it is for this reason that without naming the petitioners as accused they
are likely to be harassed in respect of FIR, which is subject matter of
challenge in this petition. On this basis, it is submitted that urgent interim
relief is necessary, particularly when thoroughout the pendency of the
present writ petition, till date the statement made on behalf of Respondent-
State about no coercive action has been in operation.
12. Mr. Deepak Thakre, learned PP appearing for Respondent-State
strongly opposed grant of interim relief in the present case on the ground
that further investigation is being undertaken in the matter. It is submitted
that the Petitioner No. 2 cannot claim any special status and he must face the
investigation and it is within the domain of investigating officer to take
further necessary steps during the course of investigation including effecting
arrest, if necessary.
Bhagyawant Punde
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13. We have considered rival submissions on the question of grant
of interim relief. At the initial stage when this petition was taken up for
consideration, on 19.10.2020, Mr. Harish Salve, learned Senior Advocate
appearing for Petitioners on instructions had made a statement that in case
summons are received by the Petitioner No. 2, he will appear in response to
such summons and co-operate with the inquiry/investigation before the
concerned police officer. The said statement was accepted by this Court.
Thereafter, in the order dated 15.12.2020, Mr. Deepak Thakre, learned PP
appearing for Respondent-State and its officials on instructions made a
statement that no coercive action/steps would be taken against the persons
referred to in Clause 12 of running page 21 of the chargesheet, which is
quoted above in this order and the said statement was continued on various
dates of listing of the present petition and it has continued till date.
14. Mr. Mundargi, learned Senior Advocate, appearing for the
Petitioners invites our attention to the judgment of this Court in the case of
Gyanchand Verms Vs. Sudhakar B. Pujari (2011 SCC OnLine Bom 100) , and
third judge reference in the same matter reported in 2011 (6) Mh.L.J. 904,
wherein it has been held that under the Cr.P.C. there is no such concept as
"suspect" and that investigation and proceedings can be undertaken only
against accused persons. The relevant portion of the said judgment reads as
follows:-
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"30. A priori, I have no hesitation in taking the view
that column 12 provided in Form I.I.F.-V of Final
Report From, as prescribed by the State Government
in terms of Notification dated 18th March 1997 or in
the circular issued by the Director (SR), Government
of India, Ministry of Home Affairs, dated September
21, 2005, is opposed to Criminal Jurisprudence; and
retaining thereof in the police report submitted to
the Court against the petitioner has the inevitable
effect of violating his fundamental right guaranteed
to him under Article 21 of the Constitution of India.
Accordingly, the name of the Petitioner mentioned in
supplementary police report/charge-sheet No. 6 and
onwards up to the Final Police Report/charge-sheet
as suspect accused will have to be effaced from the
record. "
15. In view of aforesaid exposition of law in the majority opinion of
(A.M. Khanwilkar & V.M. Kanade, JJ.), the prosecution agency cannot invoke
clause 12 in the chargesheet for taking coercive action against the
petitioners. Accordingly, the investigating agency cannot take coercive action
against the petitioners relying upon the aforesaid clause 12 of the
chargesheet.
16. There can be no doubt about the fact that the investigating
agency can continue with further investigation as per the statement made by
Mr. Thakre, learned PP appearing for Respondent-State. At this stage, Mr.
Thakre, learned PP on instructions made a statement that investigation
would be completed qua the petitioners within 12 weeks from today. The
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statement is accepted. But, at the same time, the petitioners in the peculiar
facts and circumstances of the present case, need to be granted limited
protection during the pendency of this petition.
17. Accordingly, we direct that in case the investigating officer
desires to summon the Petitioner No. 2 for inquiry/investigation, he shall
give clear notice of 3 days (excluding holidays) to him. In case, such
notice/summons is received by the Petitioner No. 2, as assured by the
Petitioner No. 2 to this Court and recorded in the order dated 19.10.2020, he
shall appear and co-operate with the inquiry before the concerned
investigating officer. During the course of investigation/inquiry, if the
investigating officer has reason to believe that he needs to take coercive
action against petitioner No. 2, he shall give clear notice of 72 hours before
taking such coercive action, so as to facilitate the Petitioner No. 2 to
approach the competent forum for appropriate reliefs. This interim order is
granted in the peculiar facts and circumstances of this case, keeping in view
the serious malafide alleged by the Petitioners against respondents and also
keeping in view earlier actions taken by Respondent-State and its officials
against the Petitioner No. 2. It is made clear that, unless aforesaid procedure
is followed by the Investigating Officer, no coercive action of arrest should be
taken against the Petitioner No. 2. Stand over to 28.06.2021 at 2.30 p.m.
( MANISH PITALE, J.) (S. S. SHINDE, J.)
Bhagyawant Punde
