Monday, February 6, 2023

Legal Pyrotechnics

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In dealing with some critical aspects of this incredibly complex case, it would be necessary to separate the legal wheat from the garrulous chaff.

By Sujit Bhar

Sushant Singh Rajput committed suicide by hanging himself at his residence on June 14, 2020. The Mumbai Police registered an Accidental Death Report (ADR) and commenced inquiry u/s 174, 175 of the CrPC to ascertain the cause of death and also to determine whether the death was the result of some criminal act committed by somebody else. The police did not lodge an FIR, because there was, at that point, no complaint alleging wrongdoing. The Mumbai Police interviewed 56 people who were associated with Rajput, including his cook, and director Mahesh Bhatt.

Things started going out of hand in three areas. First, the media took it upon itself to conduct raucous media trials, and there even emerged the option of murder. That idea did not hold water, but what did was the idea of “abetment to commit suicide”. Top Bollywood names suddenly came into the “picture”. Those names included, other than Rhea Chakraborty, Karan Johar, Sanjay Leela Bhansali, Salman Khan and Ekta Kapoor.

Then, on July 25, advocate Sudhir Kumar Ojha registered an FIR (No. 241 of 2020) against the alleged abettors at the Rajeev Nagar Police Station, Patna. That FIR has been the springboard for all that has been happening.

The FIR has been registered under the following sections of the IPC:

  • Section 341 (Punishment for wrongful restraint)
  • S 342 (Punishment for wrongful confinement)
  • S 380 (Theft in dwelling house, etc.)
  •  S 406 (Punishment for criminal breach of trust)
  • S 420 (Cheating and dishonestly inducing delivery of property)
  • S 306 (Abetment of suicide)
  • S 506 (Punishment for Criminal Intimidation)
  • NOTE: As well as Section 109 (Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment) and
  • S 120B (Punishment of criminal conspiracy).

The cause of abetment to suicide, as expressed in the original FIR was that the alleged abettors tried to sabotage the career of Rajput by making sure that he did not get enough films to do and if at all he got films to act in then he was discreetly removed from those films.

This is crux of the FIR. The punishment for this is stringent. The IPC says:

“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.” This was challenged in Smt Gian Kaur vs State of Punjab, but the Supreme Court upheld the Section, saying that Section 306 enacted a distinct offence which is capable of existence independent of Section 309 (attempt to commit suicide) of the IPC. Technically, proving guilt in this section is difficult, because, according to law, it should be proved “beyond reasonable doubt that the abettor intended that the victim should end his life by committing suicide”.

The technicality of this point cannot be overlooked. No suicide note has been found in the room where Sushant ended his life. That makes things way more difficult to dump blame on any person or persons. What if there had been a note? Even then, proving that the particular accused had actually aided and abetted suicide would be difficult.

A recent judgment of the Karnataka High Court says: “… Mere allegations in the death note that the petitioner and others are responsible for his death, would not be sufficient to come to the conclusion that the petitioner has committed the said offence, unless the overt acts and conduct of accused are stated, in order to prove the case of the prosecution and that is sufficient to drive the person to commit suicide.” The legal position is: In cases of alleged abetment of suicide, there must be proof of direct or indirect act(s) of incitement to the commission of suicide. That is a tall order.

However, the case has acquired such prominence that most of the top legal minds of the day have rushed into the fray. That would mean interesting observations in court and extraordinary interpretations that one needs to follow with interest. These luminaries are: Senior Counsel Shyam Divan appearing for Rhea Chakraborty; Maninder Singh, appearing on behalf of the State of Bihar; Vikas Singh, appearing on behalf of the complainant; AM Singhvi and R Basant, appearing on behalf of the State of Maharashtra and Solicitor General Tushar Mehta, appearing on behalf of the Union of India.

The case has seen many loopholes, false steps and the unexplained. The first false step was by Mumbai Police, in not lodging an FIR. In the hearing for transfer of the FIR, Maninder Singh told the Supreme Court bench of Justice Hrishikesh Roy that Mumbai Police’s inquiry u/s 174, 175 [Omission to produce (document or electronic record) to public servant by person legally bound to produce it] CrPC was limited to ascertaining the cause of death, (and) does not empower Mumbai Police to undertake any investigation on the allegations in the complaint without registration of an FIR at Mumbai.

False step No. 2 was Mumbai Police’s apparent non-cooperation and obstruction to the four-member Special Investigation Team of Bihar Police which reached Mumbai on July 27. Bihar Police officer Vinay Tiwari was also forcibly “quarantined”. That gave rise to apprehensions that Mumbai Police was trying to suppress facts and that their inquiry was not fair.

Other issues then intervened to add to the legal complexity. These are:

a) Sushant’s father KK Singh claimed he had informed Mumbai Police about the impending danger to his son in February itself. Mumbai Police denies this. Sushant’s brother-in-law later went to a news channel and shared a WhatsApp chat he had to this effect.

b) While Sushant’s CA stated the actor’s income had been slowly diminishing, Sushant’s bank statement details apparently say he had Rs 18 crore in his account, which suddenly was reduced to Rs 4 crore.

c) In a big miss, Mumbai Police said there were no CCTV cameras installed at the actor’s house, though the owner of the camera company said there were and that they were working fine on the day of his death. This is either rank careless investigation or a blatant lie from the CCTV company owner.

d) Sushant’s friend and flatmate Siddharth Pithani had said that he, along with house staff, had brought down the actor’s dead body. The ambulance driver, however, said that it was he who had brought the actor’s body down, along with Mumbai Police. If this is proved, Pithani as a witness becomes unreliable.

e) Virtually countering all allegations to the contrary, statements by two of Rajput’s sisters, Priyanka Tanwar and Nitu Singh, say that the actor had been feeling low from as far back as 2013 and that he had sought psychiatric help that year. In what can be called a dodgy defence, Sushant’s father, KK Singh, later explained that he had asked for the filing of an FIR in Bihar because he had waited long enough for the Mumbai Police to do something and they did not.

A deeper look into how and why the FIR transfer issue happened and the issue of the CBI’s entry in the case is available in Justice Hrishikesh Roy’s judgment in the case. Key to the transfer seems to be the financial aspect. During hearing, Senior Advocate Vikas Singh, representing Sushant’s family, said: “When misappropriation and criminal breach of trust is alleged in respect of the assets of the deceased actor and the concerned property relatable to the alleged offence, will have to be accounted eventually to the Complainant (as a Class I legal heir of the deceased), the action of the Patna Police is contended to be within jurisdiction, under Section 179 read with Section 181(4) of the CrPC which speaks of consequences ensuing at another place, as a result of the alleged crime.” It was deemed to be a strong point, though it was mentioned in court by counsel Singhvi that the Bihar government’s decision to agree to a CBI inquiry was more out of “political exigencies” than anything else. Singhvi, of course, is an old Congress hand.

The final nail was the fact that Rhea herself was not averse to a CBI inquiry. Any objection that had been around could easily melt in this argument. The other reason that enlarged the FIR’s scope was the involvement of the Enforcement Directorate. Money laundering is the suspicion, though amounts transferred were minuscule. This is where Rhea and her attorney slipped, in asking for the case to be transferred to Mumbai Police.

The judgment points out what the lacunae were, while listing possibilities under ‘Transfer Power Under Section 406 CrPC’. It says: “Section 406 CrPC empowers the Supreme Court to transfer cases and appeals. The scope of exercise of this power is for securing the ends of justice. The precedents suggest that transfer plea under Section 406 CrPC were granted in cases where the Court believed that the trial may be prejudiced and fair and impartial proceedings cannot be carried on if the trial continues. However, transfer of investigation on the other hand was negated by this Court in the case of Ram Chander Singh Sagar and Anr. vs. State of Tamil Nadu, (1978) 2 SCC 35. Writing the judgment Justice V R Krishna Iyer, declared that:

“The Code of Criminal Procedure clothes this Court with power under Section 406 to transfer a case or appeal from one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. But, it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court….”

Therefore, no transfer of the case at the investigation level was possible. Rhea’s plea had reached a dead end.

The gamut of the intense media trial can be construed as a breach of privacy. In August 2017, through a unanimous judgment, the Supreme Court in Justice KS Puttaswamy (Retd) vs Union of India declared: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” The circus happening on television screens every day might want to hide under the Freedom of Expression clause of the Constitution. Freedom of Expression has been enshrined in Article 19(1) of the Constitution. This article allows bold media engagements in a democracy such as India. But let us not forget Article 19(2), which empowers the State to put reasonable restrictions on freedom given by Article 19(1). Technically, while the media enjoys reasonable freedom, every media action has to be calibrated carefully, paying obeisance to the Article dealing with Right to Life and Liberty/Right to Privacy, a Fundamental Right.

What is to be noted here is that the law of the land has allowed some exceptions to the rule of privacy in the interest of the public. This happened with the enactment of the Right to Information Act, 2005 (RTI). Technically, in a media trial as intense as the Rajput death case, the sufferers include the suspects, the accused, as well as the victims. Such a spotlight of negative publicity can destroy a person and more often than not invade very personal spaces.

Technically, a media sting operation, for example, clearly violates the privacy of another person. It has the potential for legal action. Here it has to be established that such action (sting or just negative publicity) was done in the larger public interest. By no stretch of imagination can the Rajput media fiasco be construed as having a larger public interest.

There is also an exception written into the RTI Act, u/s 8 (1) (j), which exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. The only point here is, there is no clear definition of what constitutes an unwarranted invasion of privacy. Then there is the Right to Reputation. It says that casting an adverse reflection on the character of an individual should not be published, unless it comes under certain circumstances.

Regarding the media trial, the then Chief Justice of India, Justice RM Lodha, had described the issue as “very serious”. His observation was:

“The Supreme Court needs to delve into the issue in the wake of growing instances of trials by media and public condemnation of accused on the basis of information provided by police and prosecutors although the trial remains to conclude. (The) Court has taken a serious note on media briefing by police and other investigating agencies. Nothing should be done to hamper investigations and secrecy of the probe. This all needs certain checks because they all touch upon Article 21. Parallel process of trial by media should not be allowed when a trial is already going on in court.”

This brings under the scanner all the comments made on media by people in uniform. The circus that the media has become has not only killed its reputation, but in the process is dragging into the gutter many other individual reputations. It’s high time the top court frame guidelines on such circuses.

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