Sooraj Aditya Pancholi Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/1102467
CourtMumbai High Court
Decided OnJul-01-2013
Case NumberCriminal Bail Application No.992 of 2013
JudgeTHE HONOURABLE MRS. JUSTICE SADHANA S. JADHAV
AppellantSooraj Aditya Pancholi
RespondentState of Maharashtra
Excerpt:
p.c. heard the learned senior counsel for the applicant, the learned app and also the learned counsel for the original complainant. perused the papers of investigation. 2. it is the case of prosecution that on 3rd june, 2013, nafisa jiah khan had committed suicide in her house by hanging. she was a young and bright artist. a/d/mp/61/2013 was registered. investigation was set in motion. 3. on 10th june, 2013, the mother of nafisa @ jiah khan lodged a report at the juhu police station, alleging therein that on 8th june, 2013, a condolence meeting was to be held for offering condolence to nafisa @ jiah khan. the mother of the victim was aware that her daughter used to write poems and, therefore, she wanted to read out poems to persons who had gathered at the condolence meeting. while searching for the poems, the daughter of the complainant came across the letters which were not addressed to anybody, in particular. neither they were extracts of her daily diary. it is alleged that the complainant was shocked and had read the contents of the said pages. after going through the contents of the letter, the complainant realized that the deceased was harassed by the present applicant. the complainant has alleged that she was aware that her daughter was in a live-in-relationship with the present applicant. she had no objection to the same. according to her, in february 2013, when jiah had visited her at london, jiah had disclosed to her mother that the applicant does not respect her and humiliates her in public life. she has further alleged that when jiah was in london, she used to receive phone calls from the applicant. they used to send messages each other. on returning from london, jiah had disclosed to her mother that with the efforts of the applicant, she had regained her confidence. her passions. she was stable and all was well between the applicant and jiah. she had also disclosed that they used to receive the meals from the house of sooraj. it was only when they were in a bad mood or when a discordant note had struck between them that the applicant used to abuse jiah. on 3rd april, 2013, the complainant returned to india. the applicant used to visit their house. the applicant used to take the complainant and her daughter for dinners regularly. he had confessed before the complainant that he was deeply in love with jiah. he had also confessed that he would not be able to live without her and that he cannot imagine a life without her. the complainant had gone for dinner along with the applicant and the deceased on more than 2 - 3 occasions. she has narrated that on 18th may, 2013, jiah had left the house along with her bag and baggage and thereafter the applicant had called upon the complainant and with her permission, he had visited her house. it is alleged that the applicant informed the complainant that jiah had missed the flight and, therefore, she had reached his house i.e. the house of his parents. it is further alleged that he had informed the complainant about the relations between them. he had also disclosed to the complainant that since he has to pursue his career seriously, he would not be able to give ample time to jiah and, therefore, she is in a depressed state of mind. the complainant informed her that she was not depressed and she appears to be in normal. however the complainant convinced the applicant that in such profession ups and downs are quite obvious and, therefore, they should engage themselves in some activities so that they do not remain depressed. the complainant had disclosed to th applicant that jiah was hoping to meet salman khan. the complainant had also expressed her suspicion that the focus of the applicant has shifted from her daughter and that he has focused on his career more than her daughter. however, she had further cautioned him that her daughter was deeply involved with the applicant and, therefore, he should boost her career also. he had further disclosed that he would be more than happy if she can meet people and pursue her career. it was on that occasion that the applicant had informed the complainant and asked her whether she knew that on one occasion, jiah had attempted to commit suicide by cutting her veins. the complainant had told him that it would be a criminal case. however, he informed her that he had called a private doctor and they had treated her. the applicant had also informed the complainant that jiah is more involved in him than her own career. the complainant had told him that he would be partly responsible for the same. she had warned him that if he wants to pursue his career, then in that eventuality he should not have approached her or loved her. the applicant had expressed his dilemma over the said issue. on 28th may, 2013 also the complainant had told the applicant that he should not play games with her. he replied that he was confused. the complainant was insisting upon her daughter to pursue her career and focus on her career instead of the applicant. on that day, jiah had shown her mother the message which was given by the applicant which reads thus :- "i want to start life with you, ham pahele jaise jindagi gujarenge, i love you, i will marry you, will have our home". the complainant had allegedly cautioned her daughter against the same. according to the complainant, on 3rd june, 2013, jiah returned to the house of the complainant and informed her that there is a good news and that is she would be selected by the producer-director who had taken audition of her dances at hyderabad. thereafter, mother and daughter went for shopping. jiah then visited her brother, whereas the complainant went to the house of her friend viz. anju. she returned from her friend's house at about 10.45 p.m. at about 11.15 p.m., the complainant returned home. she was shocked when she saw that her daughter had hanged herself to the ceiling fan of the house. 4. a.d. no.61/2013 was registered. in the a.d. enquiry, it was learnt that jiah went into depression as she had been rejected by the directors at hyderabad. it is pertinent to note that upon learning of the death of jiah, the applicant and his parents had visited the house of the complainant. the victim's mobile was seized in the a.d. enquiry. certain messages were noted down by the investigating officer. in the a.d. enquiry, there was no evidence to hold the applicant responsible for the death of jiah. 5. it is only on 7th june, 2013, for the first time that after reading the contents of the letter, it was revealed that the applicant had been responsible for the suicidal death of jiah and, therefore, an offence punishable under section 306 of the indian penal code was registered against the applicant. he was arrested on 10th june, 2013. the remand yadi dated 11th june, 2013 would reveal that jiah was telephonically informed that there was no chance of her being selected in the audition for which she had performed at hyderabad. therefore, she had committed suicide. however, in the course of investigation, the investigating officer had raided the house of the applicant i.e. the premises where they lived together before she committed suicide in her mother's house. the application for bail filed by the present applicant was rejected by the sessions court and hence the application falls for consideration before this court. 6. in the course of hearing of this application, the learned senior counsel for the applicant has submitted that no offence punishable under section 306 of ipc can be attributed to the present applicant as he had not instigated her to commit suicide nor he had aided her to commit suicide. the learned counsel for the applicant further submitted that to attract an offence punishable under section 306 of ipc, the accused should have committed an act which would connote complicity of the accused in the commission of suicide of the victim. it is further submitted that although there was a live-in-relationship between the applicant and the deceased, no presumption under section 113a of the evidence act can be drawn as the deceased was not a legally-wedded wife of the applicant. the learned counsel further submits that what has to be appreciated at this stage is whether there is a nexus between the cause and the object. he has further submitted that probability of existence of a nexus between a cause and object suffers a setback, no presumption can be drawn that the applicant is responsible for the suicidal death of the victim. the learned senior counsel has further submitted that they were into the live-in-relationship by volition. it cannot be said that irrespective of the acts of applicant, the deceased had no other alternative but to commit suicide. it is apparent from the facts of the case that the mother of the deceased had arrived in india two months before jiah committed suicide. after her arrival also, jiah had shown message to her mother which clearly indicated that the applicant and jiah were deeply in love with each other. the letters which were seized from the house of the applicant would show that the deceased was deeply in love with the applicant. the deceased was about three years elder in age to the applicant. she had clearly stated in those letters which were addressed to the applicant that she was deeply romantic. she had given credit to the applicant for making her stable in life. she had further assured him that she would help him whatever way he wants and make him and his father proud. she felt obliged as he had helped her. it is not known as to why the deceased had expressed her apology to the applicant. she has further stated "i am deeply romantic and a genuine yet complex person". "take care of me, love me, i am just a lost girl, but i feel safe with you." in the letters which were found by the sister of the deceased and which were not addressed to anybody. it has been allegedly stated that the applicant had shattered her dreams, that she had lost herself in his love and yet he happened to torture her everyday. it is also stated that she had aborted a baby. one thing is clear that this script had never reached the applicant and they were in their original form in the house of the victim and therefore, it cannot be said that the emotions which were reflected in the letter had ever reached to the applicant. 7. the learned counsel who appears for the complainant has stated that jiah was harassed by the applicant to such an extent that she had no alternative but to commit suicide. 8. the counsel for the complainant has placed reliance upon the judgment and order of the hon'ble apex court in the case of chitresh kumar chopra vs. state (govt. of nct of delhi) air 2010 sc 1446. in particular, he has drawn the attention of this court to para 16 of the judgment :- "16. in the background of this legal position, we may advert to the case at hand. the question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self." one cannot be oblivious of th fact that the said judgment and order was delivered in a case where the accused were seeking discharge from the case. in the present case, this court is hearing an application under section 439 of cr.pc. the hon'ble apex court has specifically observed in para 16 that "each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self." in the present case, it cannot be ignored that jiah had suicidal tendency. on an earlier occasion, she had attempted to commit suicide and at that time it was the applicant who had called upon a doctor. he had treated her and had tried to get her out of the said depression. the complainant was not even aware of such an incident until the applicant disclosed to her. according to the counsel for the complainant, sister of the deceased was aware that jiah had undergone medical termination of pregnancy. there is nothing to indicate that they had at any point of time questioned the applicant about it and the said acts were out of volition and therefore it cannot be said that the applicant had forced her to undergo medical termination of pregnancy or otherwise. the learned counsel for the complainant has relied upon the judgment of the apex court in the case of ram pratap yadav vs. mitra sen yadav and anr. (2003) 1 scc 15, where the hon'ble apex court has observed in para 7 that although an application under section 439 before a high court is not an appeal from the order of sessions court even then it is incumbent upon the courts to consider the reasons for rejection of the bail application by the sessions court. in this respect, he has drawn attention of this court to the observation of the sessions court in para 9 of the order. the sessions court has referred the incident of the applicant sending messages to the deceased a few minutes before she committed suicide. this court has gone through the text of the sms which was received by the deceased at 11.21 p.m. on 3.6.2013. the alleged message would reveal that there was some misunderstanding between the applicant and the deceased on the ground that the applicant had been to meet another female friend and the deceased had suspected him. it is clear that she was extremely obsessive and possessive about the applicant. thereafter, the female friend had also sent a message to the deceased that there has been some mis-communication and that there was nothing serious, and had further told the deceased that she should not misunderstand her and that she would visit her on the next day. she had also tendered an apology for creating a misunderstanding. the text of the said message would show that there was an exchange of abuses in a fit of rage fury since there was misunderstanding between the applicant and the deceased. the complainant has alleged that in fact on 3.6.2013 the applicant had sent a bouquet to the deceased with a card indicating that their relationship had come to an end and therefore she committed suicide as she was left with no alternative remedy. 9. upon perusal of the papers and investigation, it appears that the investigating officer has recorded the statement of the servant of the applicant and the deceased. he has categorically stated that on 3.6.2013, the applicant had paid him rs.1,000/- and asked him to purchase a bouquet. he had purchased a bouquet. the applicant had annexed the bouquet with the card saying "best of luck" and the bouquet was to be given to the deceased by the domestic help. it appears that the complainant has misunderstood it to be an indication of breaking of relations. the learned counsel for the applicant submits that in fact since jiah was pursuing her career, she had given audition at hyderabad and therefore the applicant had extended best wishes to her and the same was construed by the complainant as a demonstration of betrayal. it is a matter of record that on 3.6.2013, the applicant had not met the deceased. the learned app submits that on 3.6.2013, jiah desperately wanted to meet the applicant, however, he was trying to avoid her. when she called up, he had asked for some period, later informed her that he was with his father and therefore could not talk to her. 10. the applicant has been in custody since 10th june, 2013 till today. the learned app submits that the investigation is in progress and therefore, the applicant does not deserve bail at this stage. she has further submitted that he had deleted messages received by him and the said cell phones have been sent to cyber cell, kalina laboratory for retrieving the data which was allegedly deleted by the applicant. it cannot be said at this stage that the applicant had attempted to cause disappearance of evidence or else he could have made every attempt to destroy the letters received by him. the cell phones have been sent to the government laboratory and there is no scope for the applicant to tamper with the evidence or to delete the same at this stage. 11. the learned counsel for the applicant submit that the process of retrieving takes a few minutes ant therefore it cannot be a ground for further incarceration of the applicant. no doubt, it is an unfortunate incident that a young girl has committed suicide. it appears that she was the victim for her sentiments. she could not overcome her emotions. the applicant cannot be held solely responsible for the same. the deceased could have always walked out of the relationship. she could not overcome her sentiments and her love for the applicant, for which he cannot be held responsible. he was also pursuing his career in acting and admittedly could not devote sufficient time for the deceased. there were misunderstandings between the applicant and the deceased just before she committed suicide. on the earlier occasion, when she tried to commit suicide, the applicant had saved her. he had helped her to come out of the depression. it cannot be said that on 3.6.2013, he had acted in any manner which could reflect a mens rea that he wanted her to commit suicide and therefore in the absence of any mens rea, instigation or aid it cannot be said that the applicant had driven her to commit suicide on that day. 12. the learned app and the counsel for the complainant fairly submits that now the report of the forensic laboratory in respect of the call details and the report of the handwriting expert is awaited. 13. the learned senior counsel for the applicant submits that for that purpose, incarceration of th applicant would be unwarranted and unjustified and therefore, he seeks bail. the papers of the investigation reveal that the investigating officer has recorded the statements of most of the relevant witnesses known to the applicant and the deceased and, therefore, this court is of the opinion that he deserves bail. 14. the observations made hereinabove are prima facie in nature and are restricted to the application under section 439(1) of cr.p.c. and shall not be considered in any other proceeding or at the time of trial. 15. in these circumstances, the applicant has made out a prima facie case for grant of bail on imposing certain conditions:- order (i) the application is allowed. (ii) the applicant be enlarged on bail on furnishing p.r. bond in the sum of rs.50,000/- and one or two solvent sureties in the like amount. (iii) upon being released, the applicant shall surrender his passport to the investigating officer. the applicant shall not leave mumbai without prior permission of the investigating officer. (iv) the applicant shall not tamper with the evidence and shall not contact any of the common friends of the deceased and the applicant. (v) the applicant shall report to the juhu police station every alternate day between 2 p.m. to 4 p.m. for one month from the date of release. (vi) any breach of conditions by the applicant shall entitle the prosecution to seek the relief under section 439(2) of cr.p.c. (vii) the applicant shall give his address and cell phone numbers to the investigating officer. 16. at this stage, the learned counsel for the applicant submits that it is difficult to obtain a solvency certificate immediately and that would render the order of release would be futile and result into further incarceration inspite of the order of grant of bail and, therefore, he prays that the applicant shall be permitted to furnish cash surety of rs.50,000/- and that he would submit the solvency within three weeks from the date of release. the oral prayer is granted. application stands disposed of.
Judgment:

P.C.

Heard the learned Senior Counsel for the applicant, the learned APP and also the learned Counsel for the original complainant. Perused the papers of investigation.

2. It is the case of prosecution that on 3rd June, 2013, Nafisa Jiah Khan had committed suicide in her house by hanging. She was a young and bright artist. A/D/Mp/61/2013 was registered. Investigation was set in motion.

3. On 10th June, 2013, the mother of Nafisa @ Jiah Khan lodged a report at the Juhu Police Station, alleging therein that on 8th June, 2013, a condolence meeting was to be held for offering condolence to Nafisa @ Jiah Khan. The mother of the victim was aware that her daughter used to write poems and, therefore, she wanted to read out poems to persons who had gathered at the condolence meeting. While searching for the poems, the daughter of the complainant came across the letters which were not addressed to anybody, in particular. Neither they were extracts of her daily diary. It is alleged that the complainant was shocked and had read the contents of the said pages. After going through the contents of the letter, the complainant realized that the deceased was harassed by the present applicant. The complainant has alleged that she was aware that her daughter was in a live-in-relationship with the present applicant. She had no objection to the same. According to her, in February 2013, when Jiah had visited her at London, Jiah had disclosed to her mother that the applicant does not respect her and humiliates her in public life. She has further alleged that when Jiah was in London, she used to receive phone calls from the applicant. They used to send messages each other. On returning from London, Jiah had disclosed to her mother that with the efforts of the applicant, she had regained her confidence. her passions. She was stable and all was well between the applicant and Jiah. She had also disclosed that they used to receive the meals from the house of Sooraj. It was only when they were in a bad mood or when a discordant note had struck between them that the applicant used to abuse Jiah.

On 3rd April, 2013, the complainant returned to India. The applicant used to visit their house. The applicant used to take the complainant and her daughter for dinners regularly. He had confessed before the complainant that he was deeply in love with Jiah. He had also confessed that he would not be able to live without her and that he cannot imagine a life without her. The complainant had gone for dinner along with the applicant and the deceased on more than 2 - 3 occasions. She has narrated that on 18th May, 2013, Jiah had left the house along with her bag and baggage and thereafter the applicant had called upon the complainant and with her permission, he had visited her house. It is alleged that the applicant informed the complainant that Jiah had missed the flight and, therefore, she had reached his house i.e. the house of his parents. It is further alleged that he had informed the complainant about the relations between them. He had also disclosed to the complainant that since he has to pursue his career seriously, he would not be able to give ample time to Jiah and, therefore, she is in a depressed state of mind. The complainant informed her that she was not depressed and she appears to be in normal. However the complainant convinced the applicant that in such profession ups and downs are quite obvious and, therefore, they should engage themselves in some activities so that they do not remain depressed. The complainant had disclosed to th applicant that Jiah was hoping to meet Salman Khan. The complainant had also expressed her suspicion that the focus of the applicant has shifted from her daughter and that he has focused on his career more than her daughter. However, she had further cautioned him that her daughter was deeply involved with the applicant and, therefore, he should boost her career also.

He had further disclosed that he would be more than happy if she can meet people and pursue her career. It was on that occasion that the applicant had informed the complainant and asked her whether she knew that on one occasion, Jiah had attempted to commit suicide by cutting her veins. The complainant had told him that it would be a criminal case. However, he informed her that he had called a private doctor and they had treated her. The applicant had also informed the complainant that Jiah is more involved in him than her own career. The complainant had told him that he would be partly responsible for the same. She had warned him that if he wants to pursue his career, then in that eventuality he should not have approached her or loved her. The applicant had expressed his dilemma over the said issue. On 28th May, 2013 also the complainant had told the applicant that he should not play games with her. He replied that he was confused. The complainant was insisting upon her daughter to pursue her career and focus on her career instead of the applicant. On that day, Jiah had shown her mother the message which was given by the applicant which reads thus :-

"I want to start life with you, ham pahele jaise jindagi gujarenge, I love you, I will marry you, will have our home".

The complainant had allegedly cautioned her daughter against the same. According to the complainant, on 3rd June, 2013, Jiah returned to the house of the complainant and informed her that there is a good news and that is she would be selected by the producer-director who had taken audition of her dances at Hyderabad. Thereafter, mother and daughter went for shopping. Jiah then visited her brother, whereas the complainant went to the house of her friend viz. Anju. She returned from her friend's house at about 10.45 p.m. At about 11.15 p.m., the complainant returned home. She was shocked when she saw that her daughter had hanged herself to the ceiling fan of the house.

4. A.D. No.61/2013 was registered. In the A.D. Enquiry, it was learnt that Jiah went into depression as she had been rejected by the directors at Hyderabad. It is pertinent to note that upon learning of the death of Jiah, the applicant and his parents had visited the house of the complainant. The victim's mobile was seized in the A.D. Enquiry. Certain messages were noted down by the Investigating Officer. In the A.D. Enquiry, there was no evidence to hold the applicant responsible for the death of Jiah.

5. It is only on 7th June, 2013, for the first time that after reading the contents of the letter, it was revealed that the applicant had been responsible for the suicidal death of Jiah and, therefore, an offence punishable under Section 306 of the Indian Penal Code was registered against the applicant. He was arrested on 10th June, 2013. The Remand Yadi dated 11th June, 2013 would reveal that Jiah was telephonically informed that there was no chance of her being selected in the audition for which she had performed at Hyderabad. Therefore, she had committed suicide. However, in the course of investigation, the Investigating Officer had raided the house of the applicant i.e. the premises where they lived together before she committed suicide in her mother's house. The application for bail filed by the present applicant was rejected by the Sessions Court and hence the application falls for consideration before this Court.

6. In the course of hearing of this application, the learned Senior Counsel for the applicant has submitted that no offence punishable under Section 306 of IPC can be attributed to the present applicant as he had not instigated her to commit suicide nor he had aided her to commit suicide. The learned Counsel for the applicant further submitted that to attract an offence punishable under Section 306 of IPC, the accused should have committed an act which would connote complicity of the accused in the commission of suicide of the victim. It is further submitted that although there was a live-in-relationship between the applicant and the deceased, no presumption under Section 113A of the Evidence Act can be drawn as the deceased was not a legally-wedded wife of the applicant. The learned Counsel further submits that what has to be appreciated at this stage is whether there is a nexus between the cause and the object. He has further submitted that probability of existence of a nexus between a cause and object suffers a setback, no presumption can be drawn that the applicant is responsible for the suicidal death of the victim.

The learned Senior Counsel has further submitted that they were into the live-in-relationship by volition. It cannot be said that irrespective of the acts of applicant, the deceased had no other alternative but to commit suicide. It is apparent from the facts of the case that the mother of the deceased had arrived in India two months before Jiah committed suicide. After her arrival also, Jiah had shown message to her mother which clearly indicated that the applicant and Jiah were deeply in love with each other. The letters which were seized from the house of the applicant would show that the deceased was deeply in love with the applicant. The deceased was about three years elder in age to the applicant. She had clearly stated in those letters which were addressed to the applicant that she was deeply romantic. She had given credit to the applicant for making her stable in life. She had further assured him that she would help him whatever way he wants and make him and his father proud. She felt obliged as he had helped her. It is not known as to why the deceased had expressed her apology to the applicant. She has further stated "I am deeply romantic and a genuine yet complex person". "Take care of me, Love me, I am just a lost girl, but I feel safe with you."

In the letters which were found by the sister of the deceased and which were not addressed to anybody. It has been allegedly stated that the applicant had shattered her dreams, that she had lost herself in his love and yet he happened to torture her everyday. It is also stated that she had aborted a baby. One thing is clear that this script had never reached the applicant and they were in their original form in the house of the victim and therefore, it cannot be said that the emotions which were reflected in the letter had ever reached to the applicant.

7. The learned Counsel who appears for the complainant has stated that Jiah was harassed by the applicant to such an extent that she had no alternative but to commit suicide.

8. The Counsel for the complainant has placed reliance upon the Judgment and order of the Hon'ble Apex Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) AIR 2010 SC 1446. In particular, he has drawn the attention of this Court to para 16 of the Judgment :-

"16. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self."

One cannot be oblivious of th fact that the said judgment and order was delivered in a case where the accused were seeking discharge from the case. In the present case, this Court is hearing an application under Section 439 of Cr.PC. The Hon'ble Apex Court has specifically observed in para 16 that "each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self."

In the present case, it cannot be ignored that Jiah had suicidal tendency. On an earlier occasion, she had attempted to commit suicide and at that time it was the applicant who had called upon a doctor. He had treated her and had tried to get her out of the said depression. The complainant was not even aware of such an incident until the applicant disclosed to her. According to the Counsel for the complainant, sister of the deceased was aware that Jiah had undergone medical termination of pregnancy. There is nothing to indicate that they had at any point of time questioned the applicant about it and the said acts were out of volition and therefore it cannot be said that the applicant had forced her to undergo medical termination of pregnancy or otherwise. The learned Counsel for the complainant has relied upon the Judgment of the Apex Court in the case of Ram Pratap Yadav vs. Mitra Sen yadav and Anr. (2003) 1 SCC 15, where the Hon'ble Apex Court has observed in para 7 that although an application under Section 439 before a High Court is not an appeal from the order of Sessions Court even then it is incumbent upon the Courts to consider the reasons for rejection of the bail application by the Sessions Court. In this respect, he has drawn attention of this Court to the observation of the Sessions Court in para 9 of the order. The Sessions Court has referred the incident of the applicant sending messages to the deceased a few minutes before she committed suicide.

This Court has gone through the text of the SMS which was received by the deceased at 11.21 p.m. on 3.6.2013. The alleged message would reveal that there was some misunderstanding between the applicant and the deceased on the ground that the applicant had been to meet another female friend and the deceased had suspected him. It is clear that she was extremely obsessive and possessive about the applicant. Thereafter, the female friend had also sent a message to the deceased that there has been some mis-communication and that there was nothing serious, and had further told the deceased that she should not misunderstand her and that she would visit her on the next day. She had also tendered an apology for creating a misunderstanding. The text of the said message would show that there was an exchange of abuses in a fit of rage fury since there was misunderstanding between the applicant and the deceased. The complainant has alleged that in fact on 3.6.2013 the applicant had sent a bouquet to the deceased with a card indicating that their relationship had come to an end and therefore she committed suicide as she was left with no alternative remedy.

9. Upon perusal of the papers and investigation, it appears that the Investigating Officer has recorded the statement of the servant of the applicant and the deceased. He has categorically stated that on 3.6.2013, the applicant had paid him Rs.1,000/- and asked him to purchase a bouquet. He had purchased a bouquet. The applicant had annexed the bouquet with the card saying "Best of Luck" and the bouquet was to be given to the deceased by the domestic help. It appears that the complainant has misunderstood it to be an indication of breaking of relations. The learned Counsel for the applicant submits that in fact since Jiah was pursuing her career, she had given audition at Hyderabad and therefore the applicant had extended best wishes to her and the same was construed by the complainant as a demonstration of betrayal. It is a matter of record that on 3.6.2013, the applicant had not met the deceased. The learned APP submits that on 3.6.2013, Jiah desperately wanted to meet the applicant, however, he was trying to avoid her. When she called up, he had asked for some period, later informed her that he was with his father and therefore could not talk to her.

10. The applicant has been in custody since 10th June, 2013 till today. The learned APP submits that the investigation is in progress and therefore, the applicant does not deserve bail at this stage. She has further submitted that he had deleted messages received by him and the said cell phones have been sent to Cyber Cell, Kalina Laboratory for retrieving the data which was allegedly deleted by the applicant. It cannot be said at this stage that the applicant had attempted to cause disappearance of evidence or else he could have made every attempt to destroy the letters received by him. The cell phones have been sent to the Government Laboratory and there is no scope for the applicant to tamper with the evidence or to delete the same at this stage.

11. The learned Counsel for the applicant submit that the process of retrieving takes a few minutes ant therefore it cannot be a ground for further incarceration of the applicant. No doubt, it is an unfortunate incident that a young girl has committed suicide. It appears that she was the victim for her sentiments. She could not overcome her emotions. The applicant cannot be held solely responsible for the same. The deceased could have always walked out of the relationship. She could not overcome her sentiments and her love for the applicant, for which he cannot be held responsible. He was also pursuing his career in acting and admittedly could not devote sufficient time for the deceased. There were misunderstandings between the applicant and the deceased just before she committed suicide. On the earlier occasion, when she tried to commit suicide, the applicant had saved her. He had helped her to come out of the depression. It cannot be said that on 3.6.2013, he had acted in any manner which could reflect a mens rea that he wanted her to commit suicide and therefore in the absence of any mens rea, instigation or aid it cannot be said that the applicant had driven her to commit suicide on that day.

12. The learned APP and the Counsel for the complainant fairly submits that now the report of the Forensic Laboratory in respect of the call details and the report of the handwriting expert is awaited.

13. The learned Senior Counsel for the applicant submits that for that purpose, incarceration of th applicant would be unwarranted and unjustified and therefore, he seeks bail. The papers of the investigation reveal that the Investigating Officer has recorded the statements of most of the relevant witnesses known to the applicant and the deceased and, therefore, this Court is of the opinion that he deserves bail.

14. The observations made hereinabove are prima facie in nature and are restricted to the application under Section 439(1) of Cr.P.C. and shall not be considered in any other proceeding or at the time of trial.

15. In these circumstances, the applicant has made out a prima facie case for grant of bail on imposing certain conditions:-

ORDER

(i) The application is allowed.

(ii) The applicant be enlarged on bail on furnishing P.R. Bond in the sum of Rs.50,000/- and one or two solvent sureties in the like amount.

(iii) Upon being released, the applicant shall surrender his Passport to the Investigating Officer. The applicant shall not leave Mumbai without prior permission of the Investigating Officer.

(iv) The applicant shall not tamper with the evidence and shall not contact any of the common friends of the deceased and the applicant.

(v) The applicant shall report to the Juhu Police Station every alternate day between 2 p.m. to 4 p.m. for one month from the date of release.

(vi) Any breach of conditions by the applicant shall entitle the prosecution to seek the relief under Section 439(2) of Cr.P.C.

(vii) The applicant shall give his address and cell phone numbers to the Investigating Officer.

16. At this stage, the learned Counsel for the applicant submits that it is difficult to obtain a solvency certificate immediately and that would render the order of release would be futile and result into further incarceration inspite of the order of grant of bail and, therefore, he prays that the applicant shall be permitted to furnish cash surety of Rs.50,000/- and that he would submit the solvency within three weeks from the date of release. The oral prayer is granted.

Application stands disposed of.