IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 317 OF 2008 Ashok Narsing Ranvare ...... ...... Applicant V/s State of Maharashtra ...... .....Respondent. Mr.V.N.Bolinjkar, Adv. For the applicant. Ms.P.P.Shinde, APP For the respondent. CORAM: A.P.DESHPANDE, J. 16/2/08 PC: By this application the applicant who is original accused No.5 takes an exception to an order passed by the First Ad-hoc Assistant Sessions Judge dated 18.1.08 framing charge against him under section 498A of IPC (wrongly typed as section 498 of IPC in the order of framing charge) so also objects to the framing of charge under section 306 read with section 34 of IPC along with other accused. 2. Kurla police station charge sheeted accused Nos. 1 to 5 for having committed offence punishable under sections 498A and 306 read with section 34 of IPC. The prosecution case is that the deceased Anarkali daughter of Vishwas Bhagat after marriage with accused No.1 was subjected to physical and mental cruelty on account of suspicion over her character which led her to commit suicide on 27.4.2005. It is also the case of the prosecution that 1 accused No.5' s proposal for marrying the deceased Anarkali was turned down and hence enraged thereby he telephone accused No.1 husband of the deceased and informed him about bad character/illicit relations of accused No.5 himself with the deceased. Said information conveyed by accused No.5 instigated accused No.1 to subject Anarkali to cruel treatment. Accused Nos. 2 to 4 are family members of accused No.1-husband. In this set of facts original accused Nos.2 to 4 moved an application for discharge and the present applicant/accused No.5 as well filed an application for discharge. The said application had been rejected. Despite rejection of the application perusal of the operative part of the order dated 26.9.07 goes to reveal that the Court has found that prima facie case has been made out against accused No.5 to frame charge against him under section 306 read with section 107 of IPC. The said order did not find prima facie case being made out against the present applicant under section 498A. However while framing charge no separate charge has been framed against the applicant/accused No.5 though the role allegedly played by him is altogether different from what is alleged against accused Nos. 2 to 4. Learned counsel for the applicant has pointed out that section 498A of IPC has no application to the present applicant for the reason that the applicant is not relative of the husband. Perusal of section 498A reveals that only if a husband or the relative of the husband subjects women of cruelty, same is punishable. As the present applicant neither is the husband nor relative of the husband of the deceased the charge framed against him under 2 section 498A is unsustainable. It is next contended that all the accused are charged under section 306 read with section 34 of IPC. The submission of the learned counsel on behalf of the applicant is that section 34 comes into play when acts are done by several persons in furtherance of common intention. Learned counsel has further submitted that common intention cannot be confused with same or similar intention. It is then submitted that consorted effort or meeting of mind to carry out the act is essential ingredient for attracting section 34. Reverting back to the facts of the present case the present applicant had proposed to marry deceased prior to her marriage with accused No.1 and as his proposal was then turned down he telephoned accused No.1-husband of the deceased and informed him about his relations with the deceased which instigated accused No.1 to subject the deceased to cruelty. If this be so, then the intention of the present applicant could be said to be similar viz. to cause harassment/ill treatment or abate the deceased to commit suicide but it cannot be said that they shared a common intention in furtherance of which the suicide could be said to have been committed. It is also pointed out that it is not the case of the prosecution that the present applicant along with other accused in furtherance of common intention has done any act. The applicant was acting independently and did not share the common intention which could have been shared by the accused Nos. 2 to 4. 3. Learned additional public prosecutor concedes that the framing of charge under section 498A is incorrect. However she submits that only after recording of evidence in case the 3 correctness of framing charge under section 34 could be gone into and this would be premature stage. The trial Court does not seem to have applied its mind at the time of framing of the charge to the order passed by him on 26.9.07 and unmindful of the said order has proceeded to frame same charge against all the accused. Thus the order of framing charge dated 18.1.08 needs to be quashed and set aside as the same is wholly unsustainable in law and hence I proceeded to quash the order framing charge dated 18.1.08. I direct the trial Court to frame separate charge against the present applicant on one hand and the other accused on the other hand. The trial Court shall afford an opportunity of hearing to the present applicant before framing of charge against him. The trial Court shall frame charge in the light of observations made in this order. Application to the above extent is allowed and stands disposed of. 16.2.08 4