1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 966 OF 2009 1. Devesh s/o Dattabhau Pathrikar, Age 24 Years, Occupation Student, 2. Dattabhau s/o Annasaheb Pathrikar, Age 65 Years, Occupation Pensioner, 3. Meher w/o Dattabhau Pathrikar, Age 59 Years, Occupation Lecturer, All resident of Plot No. 490, N – 3, CIDCO, Aurangabad, Taluka and District Aurangabad Petitioners V E R S U S The State of Maharashtra Respondent Mr. Shirish Gupte, Sr. Counsel with Mr. Joydeep Catterji, Advocate for the petitioners Mr. N.H. Borade, A.P.P. for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 20th April, 2010 J U D G M E N T 1. Rule. Rule made returnable forthwith. By consent, Writ Petition is taken up for final hearing. 2. This Writ Petition is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal 2 Procedure to challenge the correctness of the order passed by the Assistant Sessions Judge, Aurangabad, in Sessions Case No. 225 of 2006, rejecting the petitioners' application seeking discharge. 3. The petitioners are accused in Sessions Case No. 225 of 2006. They are accused of committing offence under Section 306 read with Section 34 of the Indian Penal Code. On perusal of the entire charge-sheet, I find following allegations made against the petitioners. 4. The petitioner No. 1 is the son of the petitioners No. 2 and 3. The petitioner No.2 is a politician and had friendly relations with the complainant Shri. Vinayak Borse, who also is a politician. In July, 2004, the families(including grown children) of the complainant and the petitioner No.2 went for sight seeing trip of 12 days to South India. The children in the families became friends. The petitioner No. 1, a young man of 24 years, the only son of the petitioners No. 2 and 3 got acquainted to the complainant’s unmarried daughter Shweta, who also known as ‘Rani’, who was then 20 years old. Soon thereafter, Rani and the petitioner No.1 started meeting each other, and on one occasion, Rani introduced the petitioner No.1 to her friend Himanshu. It appears, the petitioner No.1 fell in love with Rani, and then, for some time, Rani also responded to his romantic advances. She sent number of love text messages(SMS). to Devesh and vice versa. It seems that this friendship did not last long. Rani, after 3 February, 2005, stopped entertaining the petitioner No.1’s messages. It appears that the petitioner No.1 and Rani in happier times took some photographs, depicting them as a couple. The photographs are on record, and it is said that these photographs were seized during the investigation from the custody of the petitioner No.1. I saw the photographs, and it became clear to me that these photographs were taken on various occasions, showing both the parties in different clothes, wearing different ornaments etc. The photographs also show that they were happy to be in company of each other. The photographs did not depict any nudity or eroticism. Prima facie, therefore, it is seen that during happier times, the couple took these photographs with the help of probably a camera fitted in a mobile phone. It also appears that these photographs are taken indoors. 5. Some time prior to November, 2005, the petitioner No.1 and Rani talked to each other about getting married. For this alliance, it seems, the parents of the petitioner No.1 had no objection, but Rani’s mother, after meeting the petitioner No.1, did not give her consent, and told him that the matter could be decided only after consultation with Rani’s father, the complainant. (This fact is apparent from the statement of petitioner No.1’s friend Mahesh). It seems, in mid November, 2005, a maternal uncle of petitioner No.1 went to one Dalvi, a Journalist, who knew both the petitioner No.2 and the complainant, as active political workers. The 4 maternal uncle of the petitioner No.1 requested Dalvi to meet the complainant and put forward the proposal of marriage between the petitioner No.1 and Rani. Accordingly, Dalvi went to see the complainant at his house. But, the complainant pleading ignorance about the alleged love affair between the petitioner No.1 and Rani, sought some time to consider the proposal. But, immediately thereafter, the complainant contacted Dalvi on telephone and told him that his daughter Rani did not love the petitioner No.1. At the same time, the complainant asked his daughter Rani to inform this fact and to Dalvi. Rani told Dalvi that she did not love the petitioner No.1 and there was no question of her getting married to the petitioner No.1. 6. On 3rd December, 2005, the petitioner No.3 made a phone call to the complainant and sought his appointment. On the next day, even the petitioner No.2 made a phone call to him and sought his appointment. The complainant immediately informed this fact to Rani. Rani, in turn, immediately made a phone call to the petitioner No.3 and told her that she would not marry her son, the petitioner No.1, and that, she should not make any phone calls about this matter to her or to her parents. 7. On 5th December, 2005, Rani complained to her younger brother Amit that the petitioner No.1 was trying to use the photographs, which he had taken, of which a reference is made above, and threatening that if she did not marry him, he would 5 distribute the photographs to her nears and dears. Amit, the son of the complainant, then made a phone call to the petitioner No.1 and demanded explanation. To this, the petitioner No.1 in unequivocal terms told him that unless the complainant and his family members agree to accept his marriage proposal with Rani, he would defame Rani and her family by using the photographs. 8. On 8th December, 2005, the petitioner met one Siddharth, who happened to be a close friend of Amit. The petitioner No.1 showed all the 24-25 photographs to Siddharth, and asked him, to put a word for him to the complainant and his family and to accept his proposal of marriage to Rani. Siddharth immediately informed this fact to Amit. 9. On 11th December, 2005, one Monty, a close friend of the petitioner No.1 made a phone call to Amit and called him to meet him. After they met, Monty told Amit that Devesh would utilize the photographs to defame Rani and her family, if his proposal for marriage is not accepted. However, on that day, Monty and Amit decided to arrange a meeting between petitioner No.1, Rani and their close friends. Accordingly, on 16th December, 2005, the petitioner No.1, his driver, his friends Monty and Mahesh went to one Hotel to meet them. Amit, Rani and Amit’s friend Siddharth too went there. The friends urged the petitioner No.1 to listen as to what Rani would say about his 6 proposal to him. Accordingly, Rani and the petitioner No.1 were given privacy to talk. But, soon Rani was seen agitated. Realizing that Rani had point blank told the petitioner No.1 that she would not marry him, Amit and his friend Siddharth went near Rani and petitioner No.1. This time, they supported Rani, and, the petitioner No.1 then started threatening all of them that he would use the photographs to destroy Rani’s life etc. This provoked Amit and he assaulted the petitioner No.1. A scuffle took place, in which, the petitioner No.1’s shirt got torn. The witnesses also stated that even thereafter the petitioner No. 1 followed Rani, Amit and their friends to another Hotel and continued his pestering. 10. On 25th-26th December, 2005, the petitioners No. 1 and 2 went to see one Damodhar More, an elderly person k nown to the complainant. They requested him that he should request the complainant for accepting the proposal of the petitioner No.1’s marriage with Rani. They even showed him four photographs and tried to convince him that the petitioner No.1 and Rani had love affair. Damodhar More, instead of going to the complainant, made a phone call to his relative one Yashwant, who happened to be a close relative of complainant, and informed him about the visit of the petitioners No. 1 and 2, alleged love affair and proposal etc. During this time on the other hand in December, 2005, the complainant sought help of one Gangadhar, a 'match maker' in the 7 community of the complainant. Gangadhar suggested an alliance. However, within few days, the alliance turned down the proposal. 11. On 30th December, 2005, the complainant noticed Rani in usual mood and he found nothing abnormal in her conduct. She retired to her room after having dinner, but in the morning, she was found dead. Rani had consumed poisonous substance, due to which, she died. In the morning, a dead body was found in her room. By the side of her dead body, the complainant also found a suicide note. In this note, Rani has clearly stated that she was a virtuous girl, but the petitioner No.1 had taken advantage of her naivety. She further stated in the note that the petitioner No.1 had been harassing and blackmailing her and that she was unable to tolerate such torture. The note mentioned that before dying, during that night, she had made a phone call to the petitioner No.1 and told him that he had destroyed her. 12. According to the petitioners, the evidence that has come against them, even admitting it as it is, would not go to show that they had committed offence under Section 306 of the Indian Penal Code. Before I consider the merits of the case, the preliminary objection raised by the respondent No.2, the complainant, must be resolved. Shri. Sapkal, the learned Advocate appearing for the respondent No.2 – complainant- asserted that the Writ Petition under Article 227 of the Constitution of India read with Section 482 of Code 8 of Criminal Procedure is not maintainable, because an equally efficacious remedy of filing revision under Section 397 of Code of Criminal Procedure is available to the petitioners for challenging the impugned order dated 24th August, 2009. There is no doubt and even the petitioners’ side admitted that they had an opportunity to challenge the impugned order by filing a revision. In this scenario, whether challenge to the impugned order and the viability of the prosecution case can be challenged by filing writ petition? The answer is in affirmative. Recently, the Supreme Court, in the case of Dhariwal Tobacco Products Limited and others V. State of Maharashtra and another (2009) 1 Supreme Court Cases (Cri) 806) held that availability of alternative remedy of filing revision under Section 397 of Code of Criminal Procedure could not be a ground to dismiss an application under Section 482 of Code of Criminal Procedure. Supreme Court even held that even when a revision application is barred, the remedy under Article 226 or 227 of the Constitution of India is available. Similar view is expressed by the Supreme Court in the Judgment of M/s Pepsi Foods Ltd and another v. Special Judicial Magistrate and others (AIR 1998 Supreme Court 128 (1). In this Judgment, following passage would throw better light on the controversy raised by the respondent No.2 : “It is settled that High Court can exercise its power of judicial review in criminal matters. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses 9 unless there is special procedure prescribed which procedure is mandatory. If in a case the court finds that the appellants could not invoke its jurisdiction under Art. 226, the court can certainly treat the petition one under Art. 227 or S. 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief S. 482 of the Code or Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Arts. 226 and 227 could well be treated.” 13. The learned Advocate appearing for the respondent No.2 also questioned the scope of Section 227 of Code of Criminal Procedure. He asserted, the petitioners are trying to scrutinize the minute details of the case and thereby trying to get the Court’s opinion about the trustworthiness of the prosecution case, and he (correctly) pointed out that at this stage the Court is suppose to examine the prosecution case only at its face value. In other words, the Court cannot go beyond determining as to whether a prima facie case is made out against the accused, and if it is seen, then the framing of charge is justified. I have no quarrel with this proposition and this principle is repeatedly spelt out in various Supreme Court Judgments. At the stage of framing of charge, the Court is not required to marshal the material on record. It cannot appreciate and weigh the material on record for coming to a conclusion as to whether the charge against the accused could not have been framed. To quote the words of Section 227 of Code of Criminal Procedure, what required is “whether there is sufficient ground for proceeding against the accused.” The 10 Supreme in the case of State of M.P. v. S.B. Johari and others (AIR 2000 Supreme Court 665) reiterated this basic principle and quoted following passage from earlier Judgment of the Supreme Court : “From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” 14. While deciding the application for discharge, the learned Judge of the lower Court also tried to scrutinize the material to come to a conclusion as to whether there is prima facie case against the petitioners. I am also examining this very aspect of the case. A little error that the learned lower Court committed was that he discarded and refused to look into the photographs, mention of which is already made above. He asserted that these photographs were produced on record by the petitioners/accused and so they cannot be examined at that stage. While holding this, the learned Judge placed reliance on the Judgment of Supreme Court in the case of State of Orissa V. Debendranath Pathi. However, the learned Judgment of the lower Court lost sight of one vital aspect of this case, and that was the photographs, which I have discussed above, are not produced on record by the accused in their defence. These photographs are the prosecution material. The police brought them on record and made 11 them part of the charge-sheet. In fact, these photographs are quite important material. It is the prosecution case that by using these photographs, and none other photographs, the petitioners were trying to blackmail deceased Rani. I have made my comments about the photographs, and, I do not wish to discuss the prosecution case in respect of the facts, which led the petitioner No.1 to shoot these photographs. I made my comments on the photographs only on its face value, a prima facie conclusion that I drew. So, there is no dispute about the scope of Section 227 of Code of Criminal Procedure and the duty of the Court relating to it. 15. The first question, which is required to be decided is, whether there is prima facie case against the petitioners No. 2 and 3, who are parents of the petitioner No.1. The prosecution case shows that on 3rd and 4th December, 2005, the petitioners No. 2 and 3 made phone calls to the complainant and sought his appointment. They obviously were trying to push forward the marriage proposal of their son with Rani. But, their attempt got scuttled at the very inception. Rani promptly made her mind clear to them, telling them that she would not marry their son. Making an attempt to push a marriage proposal of their son to the bride’s parents is not a criminal activity. There is nothing on record to show that the petitioners No. 2 and 3 met Rani to pressurize for agreeing to marry their son. Even the suicide note does not blame them. Rani in her suicide note did not 12 utter a single word against the petitioners No. 2 and 3. The petitioners No. 2 and 3, as discussed earlier, met two prosecution witnesses namely More and Dalvi for requesting them to act as mediators for pushing their proposal with the complainant and his family. There is nothing on record even to suggest that the petitioners No. 2 and 3 tried to misuse the photographs for pressurizing Rani or her parents. I am, therefore, inclined to hold that there is no prima facie case against the petitioners No. 2 and 3. 16. The second question is, whether there is prima facie against the petitioner No.1. The answer is in affirmative. I have narrated the prosecution case as it relates to the role attributed to the petitioner No.1. The petitioner No.1 persisted his demand with Rani that she should marry him, and, Rani consistently refused to yield to his demand. The petitioner No.1 did not stop at that, but he sent his friend to Amit and he cleverly tried to take advantage of the photographs which he had in his possession. It is also clear that not only the friends of Rani and Amit, but his own friends tried to discourage the petitioner No.1 from persisting his demand of getting married to Rani if she did not want to marry him. In order to verify, whether Rani wanted to marry him, all these young people arranged a meeting in a hotel on 16th December, 2005, and they tried to find out, whether Rani in unequivocal terms would say that she would not marry the petitioner No.1. This indeed happened. She point blank 13 told the petitioner No.1 that she would not marry him, and at that time, the petitioner No.1, instead of accepting her decision, tried to persist with his demand, and he threatened her, that by using the photographs he had, he would destroy her. He even threatened that he would publish the photographs in newspapers. The moment he realized that Rani would not marry him, he made it clear to her and others that he would not allow Rani to marry anyone else (probably in an arranged marriage). It is prima facie clear that the petitioner No.1 intended to show these photographs to the grooms who would consider Rani’s proposal for marriage. The existence of these photographs had a terrible effect on Rani’s mind. Rani and her conservative parents thought it wrong that a young unmarried girl should not appear in photographs with a boy. In her suicide note, she tried to plead with her parents that though her photographs are taken by the petitioner No.1, they should not take her as a flirt. She had realized that the petitioner No.1 was utilizing the photographs for defaming her. She expressed bitterness for the petitioner No.1 and few other persons. She also gave importance to the honour of the family realizing that due to her photographs and its devious use by the petitioner No.1, she would damage the reputation of her family. She felt trapped and chose to end her life. 17. The question is, whether the petitioner No.1’s attempt to use the photographs to malign the name of Rani and to scuttle her 14 prospect of arranged marriage and to threaten her to destroy her and her family members, would amount to abetment of suicide? In order to answer this question, one has to know the meaning of the expression of abetment used in Section 107 in the context of Section 306 of the Indian Penal Code. The provisions are as under : Section 306 reads as under : 306. Abetment of suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 107 reads as under : 107. Abetment of a thing - A person abets the doing of a thing, who - First – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 – A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Having regard to the provisions of Section 107 of the Indian Penal Code, the prosecution has to prima facie show that the petitioner No.1 had instigated Rani to commit suicide or he had intentionally aided by 15 any act the suicide of Rani. The Law on this subject is discussed in a Judgment of Kerala High Court in the case of Cyriac s/o Devassai & Anr. Vs. Sub-Inspector of Police, Kaduthuruthy & Anr. ( 2006 All MR (Cri) Journal 27). It reads as under : “7 - ..............What is meant by the expression, ‘instigate’? The word “instigate” is not specifically defined in IPC. As per Oxford dictionary, ‘instigate’ means, “to goad or urge forward to provoke, incite, urge, encourage to do an act. 8 – It is clear from the above discussion that to constitute ‘instigation’, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other, by goading or urging forward. Going by the dictionary meaning (vide Oxford Advanced Learners Dictionary, Sixth Edition) the word ‘goad’ means, ‘keep irritating’ or annoying somebody until he reacts, “So also, ‘urge’ means ‘to advise or try hard to persuade somebody to do something or to make a person to move more quickly in a particular direction especially by pushing or forcing’ such person. ‘Urge forward’ means in this context, ‘urge’ a person ‘forward’. Thus, a person who instigates another has ‘to goad or urge forward’ the latter, with intention to provoke, incite, urge or encourage doing of an act by the latter. 9 - A close, combined reading of the meaning of the word ‘instigation’ with the meaning of the terms ‘goad’ and ‘urge’ will reveal that ‘instigation’ involves two things. One is a physical act or omission, while the other is a mental act. The physical act or omission involved in ‘instigation’ is, ‘goading or urging forward’ another. Such physical act of goading can be committed either by words or deed, as the meaning of the word suggests, ‘Goading can be committed also by any other wilful conduct may be, by even an adamant silence. Thus, by words, deeds wilful omission or wilful silence also, one can goad a person i. e. keep irritating or annoying a person until he reacts. 10 – So also, the physical act of ‘urging forward’ or ‘instigation’ involves doing of an act by strongly advising, persuading to make a person do something or by pushing or forcing a person in order to