Goswami and two other people, Feroze Shaikh and Neetish Sarda, were arrested by Alibaug police on November 4 in connection with the suicide of architect and interior designer Anvay Naik and his mother in 2018 over alleged failure to pay fees. by the companies of the accused.
“There is no case for the petitioner’s release under extraordinary jurisdiction,” said the HC bench of judges SS Shinde and MS Karnik.
The court said Goswami can apply for a regular bail in the session court, which will have to decide on it within four days. Earlier today, Goswami applied for a regular bond with the Alibag session court.
The HC also rejected the petition for bail filed by Neetish Sarda, as well as the petition for provisional release filed by Firoze Shaikh. He said they can apply for bail in the lower court, which can make a decision based on merit without being influenced by the higher court’s observations.
Alibaug Chief Justice Sunayna Pingale in a November 4 night warrant rejected Goswami’s declaration of police custody and placed him in pre-trial detention for 14 days.
Last week, the police contested the rejection in a request for review before the Alibaug session court, which will hear the matter. Police had said that custody of Goswami is essential to further investigate the matter.
The HC court, after a one-day special hearing via videoconference, had reserved its order on the allegations presented by the defendants.
On Saturday, Amit Desai Chief Counsel and Attorney General Deepak Thakre of the Maharashtra government in the Goswami case objected to his request for provisional release.
On Saturday, however, the HC had granted them freedom to request bail before the sessions pending the pronouncement. The HC had said on Saturday that in such a case, the lower court must decide on the allegations within four days after the hearing of all parties. Similarly, the HC said that even the 26-year-old Sarda was not prevented from requesting bail in court.
Goswami, 46, had filed a habeas corpus petition claiming his arrest was “illegal” and requested orders to vacate the case and proceedings and to suspend the investigation.
He also invoked the broad plenary powers of the HC under article 226 of the Constitution to seek justice when fundamental rights are violated. His lawyers Harish Salve and Aabad Ponda said that his right to life and freedom of expression were violated by the “illegal arrest” and said the authorities were acting with “malice”. Salve, cited SC judgments to emphasize that the HC had all the powers and could order Goswami’s release even if a review statement was pending before the session court.
The Maharashtra government’s special counsel Desai had said that “the issue of arrest cannot be addressed at this stage.” Desai said that Goswami’s habeas corpus petition could not be upheld as he is now in judicial custody through a “legal order” approved by the Alibaug CJM after viewing the police “case diary” detailing the ongoing investigation, with recorded witness statements.
Desai had cited several judgments of the superior court to affirm that “the HC cannot intervene under its extraordinary powers under article 226 and give a step to the procedures and established provisions of the criminal law that allows an appeal to request bail before the court of first instance “.
The HC also noted that it would not want to “undermine the authority of the court of sessions which is empowered to hear the declaration of regular surety.”
The HC cannot change the entire hierarchy under CrPC, “especially when, for unknown reasons, it withdrew the bond statement filed with the magistrate.” He said that if the HC grants a provisional bond, “it would open the floodgates to an already overburdened court” and that everyone, after arrest, will seek annulment and release on fundamental rights grounds.
“He said that the investigation cannot be halted … the investigation is ongoing as the state felt the need to carry out further investigations,” Desai had presented, adding: “The power of the state to lead the investigation is different from the power of court”.
Desai had also emphasized that an “A” summary (true, but not detected) should be treated differently than a B summary (false case) or a C summary (neither true nor false). He noted that there is a challenge to the fact that it was classified as an ‘A’ summary, which only means that the investigation is incomplete or inconclusive, and thus the arguments of Goswami’s advice that an ” court clearance for further investigation to be incorrect. ”
In addition, Desai said, the HC has to “consider the fundamental rights of a victim also for a fair investigation, the rights of an accused and a victim under the right to equality and the right to life are equal.”
Adnya Naik’s lead attorney Shirish Gupte also said: “The police handled the matter with great skill before and to release him now under extraordinary powers … it would be an injustice to the victims.” He added that “it was shocking that neither the police nor even the magistrate had deemed it appropriate to inform the victim of the closing report that is being presented when since 1985 the law has been well established by the Supreme Court that there are three parties to a criminal proceeding, the state, accused and victim “.
Salve, in her presentation, said that regardless of a defendant’s right to request bail under the criminal procedure code, their fundamental right to life and liberty remains intact and the CS has held that the HC has powers to grant a provisional bond so that the right to life “which is not negotiable” does not expire “not even for a day”.
The annulment petition presented by Goswami, as well as the request for the transfer of the investigation and the challenge to the closure of the case of his father’s suicidal complicity, by Adnya Naik, will be heard on December 10 before the HC.
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