In the matter of Rakhi Sawant, stay order of arrest granted

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court no. 44 

Criminal Misc. Writ Petition No. 22127 of 2010 

Rakhi Sawant……………………………………….Petitioner 

Vrsus 

State of U.P and others……………………………….Respondents 

Hon Imtiyaz Murtaza, J 
Hon Ram Autar Singh, J 

Present petition has been preferred for the relief of quashing the First Information Report dated 12.11.2010 registered at case crime No. 572 of 2010 under sections 306, 504, 120 B I.P.C PS Prem Nagar District Jhansi attended with the relief of writ of mandamus commanding the respondents not to arrest the petitioner for the aforesaid offences. 

As would transpire from the record, the first information report was lodged by the respondent no. 4 namely, Savitri Devi, who happens to be the mother of the deceased Laxman Ahirwar alleging that her son had tied nuptial knots with one Smt Anita on 1.2.2010 and that after sometime of marriage, there was connubial discord between the husband and wife and as a result, Smt Anita deserted her matrimonial house in a huff. Thereafter, the deceased endeavoured hard to win her back to her matrimonial house but she refused to relent. In the meantime, it is alleged, co accused contacted the deceased and insisted with him to take aid of the Reality show known as “Rakhi Ka Insaf” being exhibited on NDTV Imagine conveying at the same time that it would resolve discord between him and his estranged wife. It is further alleged that the deceased fell prey to the persistent persuasions of the co-accused and he agreed to participate in the Reality show and consequently, he completed all the formalities before participating in the programme. It is further alleged that on 13.9.2010, the deceased alongwith other family members left for Mumbai and when they arrived at Film Studio situated in Goregaon at Mumbai, Smt Aneeta and her family members were already present there. While the programme was being recorded, Rakhi Sawant Anchor of the programme, it is alleged, used the offensive language against the deceased and at one stage, called him impotent (NAMARD) without any valid proof besides insulting him in public. The aforesaid Anchor also maligned in public Balbir brother of the first informant of his being involved in illicit relationship while using extremely derogatory language against other family members present in the entire programme. When the family members present there remonstrated with the Anchor asking her to desist from using offensive and highly derogatory and abusive language, her bodyguards jumped in the fray and they also hurled unbecoming and offensive language and manhandled the deceased and family members present in the programme. The aforesaid programme was telecast on TV on 23.10.2010 which was viewed by the entire public of the country. It is further alleged that her son became distraught and distressed on account of his portrayal in unpleasant light in the show and as a result, he was unnerved and slided into trauma and began to dread his own shadow and his condition took a turn for the worse so much so that he hardly slept during night and had developed aversion to the food and whenever he was tried to be mollified, he cried saying that Rakhi Sawant had made his life hell and his life is worse than a death and that he has no desire to live any further in this world and solicited to let him die in peace. He was taken to medical college Jhansi for treatment where he was diagnosed as being tension stricken. It is further alleged that his son was living a normal life before participating in the programme and during the programme he was hurt by the offensive and derogatory words used by Rakhi Sawant and as a result, her son pined away to death. 

We have heard Sri Gopal Chaturvedi, learned Senior Advocate appearing for the petitioner and also Sri Ali Hasan learnedcounsel appearing for the complainant respondent no.4. We have also heard learned AGA for the State Authorities and perused the materials on record. 

To begin with, Sri Gopal Chaturvedi Senior Advocate assisted by Sri Rahul Agarwal and Sri Shishir Tandon appearing for the petitioner canvassed that ingredients of section 306 IPC are not at all disclosed from a punctilious reading of the FIR and in connection with this submission, he drew attention to the agreement (Annexure 2 to the writ petition) that the deceased and his family members had agreed to participate in the programme attended with further submission that before recording of the programme began, they had agreed and they had entered into agreement and even after the programme had been recorded, the participants were again enquired about objection, if any, in respect of contents of the programme but even at that stage, there was no remonstration or objection from any one of them and they even signed personal release letters and evinced their satisfaction which are being annexed to the petitions as Annexures 4,5 and 6. The learned counsel emphatically denied the allegations that after the programme had been recorded on 16th Sept 2010, the production house had not received any communication. It is also stated that promos were aired from Ist Oct 2010 on the TV channel showing clips of the episode and even then there was no objection, protestation or query from any quarter. It is further alleged that Laxman died on 10.11.2010 as a natural death and further that no post mortem is shown to have been conducted to prove the facts otherwise. The learned counsel also denied that there was any vestige of instigation so as to lead the deceased to commit suicide. In so far as petitioner is concerned, it is argued that she was the anchor of the programme. In para 4 of the petition, the averments made are as follows: 
“That, the petitioner states that the background facts are that sometime in the year 2010, the TV channel Imagine TV conceived an idea of airing a reality show later named as “RAKHI KA INSAAF’ in which the petitioner would be anchoring the show and inviting citizens from various parts of the country who had inter alia disagreements, family problems in relation to matrimony, property or such other several disputes,and who would participate in the show and who wanted to share their grievances on television and leave it to the petitioner to listen to their grievances in the presence of a large numbers of audience invited from various walks of life in the country and trry and resolve the disputes, which would be recorded and broadcast on air. The programme would be pre-recorded at a venue provided by the Production House well before the said Programme was to be aired by the TV Channel.” 

In para 5, the averments made are as follows: 

“That the petitioner states that the Production House invited the participants who were willing to and wanted to air their grievances in the presence of an audience and had agreed to be part of the programme. Towards that end, participants entered into separate agreements with the Production House wherein they voluntarily agreed to participate in the Reality Show, and subject themselves to any questions being asked in the Reality show and further agreed to have the Programme recorded with the various questions and answers that they were being subjected to and record their grievances and the attempt by the petitioner to resolve the differences and air the entire pre-recorded Programme on IV…..” 

Here we would not flinch from mentioning that agreeing to be subjected to any questions and answer does not include using derogatory language and calling a person impotent. 

The learned counsel appearing for the petitioner termed the allegations as false, frivolous, absurd and inherently improbable besides being concocted. He also referred to clarification issued by M.L.B Medical College and Hospital Jhansi in which it was denied that it was a case of suicide and they attributed the cause of death as natural death. The learned counsel also drew attention to the fact that the deceased died a natural death on 10th Nov 2010 while the FIR has been lodged on 12th Nov 2010 after much deliberation attended with the submission that there was not a scintilla of allegation in the FIR that the deceased committed suicide. It is further argued that the FIR is belated being lodged on 12.11.2010 after much deliberations. 

Before proceeding further it would be but appropriate to sum up the facts bearing on the case in order to make our own assessment whether it is a fit case for abetment of suicide, and whether there is any element of suicide. It is worth noticing here that the programme “Rakhi Ka Insaf” was recorded on 16th Sept in which the deceased, maternal uncle of deceased Balbir, maternal Aunt of deceased Puja and two of his neighbours in which his estranged wife Anita and her parents had also been invited and were present. The episode was shot in the Goregaon Film Studio at Mumbai. It would appear that before and also after the episode had been recorded, the participants signed the requisite documents agreeing to its contents and terms and had also voiced their satisfaction and at no stage, they demurred to any of the queries and shots of the programme which are annexed as Annexures 2,3,4,5, and 6. It would also appear that promos were aired on TV from Ist of Oct 2010 in which clips of episode were aired which was to be telecast on 23.10.2010 on NDTV Imagine. Even then, there was no vestige of objection from any quarter upto the date when the programme was telecast on TV. The deceased is stated to have breathed his last on 10.11.2010 while the FIR was lodged on 12.11.2010 at the police station by the mother of the deceased. There is reference of clarification of MLN Medical College Jhansi in which it was denied that it was a case of suicide further explaining that the deceased died his natural death. 

By this reckoning, it is pellucid that there was no objection to the programme being aired and there was no complaint upto the date prior to lodging of the FIR. 

Now the question arises whether it should be treated as a case of abetment to suicide. Section 306 IPC punishes abetment of suicide. For instance, if one person persuades and instigates another to kill himself by taking poison and he takes it, the person would be liable as an abettor under this section. the offence of abetment must conform to the definition of abetment given in section 107 IPC. Suicide has been defined to be self murder. The act of a person encouraging another to commit suicide is certainly criminal and his act is punishable in law and no doubt, such act is condemnable from every point of view. It being relevant, the section 306 IPC is excerpted below. 

“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 IPC being also relevant is quoted below. 

“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. 
Illustration 
A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 
Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” 

The well settled position in law is that the authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. 

In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. 

In State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. One of the illustrative categories indicated by the Apex Court which in our view is germane to the controversy involved in this petition is as follows:

“(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.” 

A supplementary affidavit has also been filed sworn by Manoj Prabhakar Karnavar as Pairokar of the petitioner. In para 2 of the said affidavit, it is averred that the petitioner used the word ‘Namard’ while addressing the deceased Laxman Singh Aharwar. This word, it is explained was used in the context to mean a person who is a coward and unable to tackle the atrocities which had been committed on his wife Anita Aharwar by the uncle (Mama) of the deceased Laxman Singh Aharwar. In para 3 of the affidavit, it is averred that the petitioner moved by the plight of Anita which she suffered at the hand of Laxman’s uncle to the extent of attempt to sexually molest/harass her, the petitioner at the spur of the moment used the word with the avowed object that the deceased was unable to stand up against the atrocities being committed on Anita by maternal uncle of the deceased and she never intended to mean that the deceased was sexually impotent. In para 4, it is averred that the petitioner did not mean to intentionally show disrespect to any person through her words or actions in the show. 

No doubt, ingredients of section 306 IPC may not be present from an ex-facie reading of the FIR but at the same time, the manner in which show has been recorded and aired does speak volumes about the ethical value of such programme. The quintessence of what is a Reality show is that it features talent culled from the ranks of ordinary people not professionally trained actors. It is believed that Reality show producers typically shoot hundreds of hours of footage per episode and use creative editing to create a narrative thread. Subjects of a Reality show may be given some rudimentary directions off screen but the point is to allow the performers to act and react as normally as possible. A Reality show behaves naturally. The intent of the show as projected by the petitioners in the writ petition appears to be to repair the frayed and fraught relations between the disputing parties so that the wounded situation may be healed into a healthy rapprochement. Even if it be believed that the intent of show was to allow the parties to give vent to the pent up feelings but it was not permissible for the Anchor to have used the unpalatable and offensive words like “NAMARD” as alleged in the F.I.R. The words used by the Anchor calling the deceased impotent (NAMARD) in the show are highly raunchy, offensive, uncivil and against all tenets of ethical norms. As stated supra, agreeing to be subjected to any question or answer, does not permit the Anchor to use indecent and derogatory language like calling a person impotent. The show, we feel, should not transcend the bounds of ethical value with due sensitivity to the society at large which forms the viewer-ship of such shows also with due regard to the creed and culture of our country. Such Reality shows seem to be vying with each other keeping their eyes peeled to T.R.P with the avowed object in mind of enhancing its viewer-ship. It is high time, the Govt would step in and ensured that such programme which are unpalatable and offensive to individual self esteem and self respect are not allowed to be telecast. 

In the instant case, there was no suicide note left behind by the deceased nor is there anything on record to show that the deceased committed suicide. The case registered against the petitioner is prima facie without any factual foundation. We find that this is a fit case where the extraordinary power under 226 of the Constitution of India is to be invoked. 

In the facts and circumstances, it is directed that Sri Ali Hassan appearing for the respondent no 4 may file counter affidavit within 4 weeks. Learned AGA may also file counter affidavit within the aforesaid period. Rejoinder affidavit if any may be filed within two weeks next thereafter. List this matter immediately after expiry of the aforesaid period. 

In the meanwhile, the arrest of the petitioner who is wanted for offences as indicated above, shall remain stayed. 

MH 
10.12.2010

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