Rustom Jamshed Soonawala vs State of Maharashtra

A.M. Badar J.—This is an application under Section 482 of the Code of Criminal Procedure ("Cr.P.C." for the sake of brevity) and incidentally the order rejecting an application for discharge by the learned Special Judge in Sessions Case No.175 of 2014 is also challenged therein.

Heard the learned Advocate appearing for the applicant/original accused. By drawing my attention to various resolutions of the NGO called ''CitiSpace'' and communications made by the applicant as well as orders of the Honourable Apex Court, the learned Advocate argued that the applicant is a public spirited citizen taking active part in activities of a NGO named as "CitiSpace". My attention is dawn to the fact that he is a member of the Core Committee of that NGO apart from being member of a SubGroup having charge of Bandra, Five Gardens H/W and F/N wards. It is pointed out from the order passed by the Honourable Apex Court on 30/11/2010 in Civil Appeal No.4156-4157 of 2002 that suggestions of this NGO came to be accepted by the Municipal Commissioner and accordingly adverse remark on failure to perform duty by the Ward Officer were agreed to be entered into his service record. It is further pointed out that this order of the Honourable Apex Court reflects that the Municipal Commissioner of Mumbai conceded to the suggestion by the NGO that six adverse entries of such type will entail termination of services of the municipal employee. With this, my attention is further drawn to the communications made by the applicant to the higher officers of the Municipal Corporation pointing out that the Lorry Inspector of the Corporation had taken hawkers to his place to point them out that they were removed at the instance of the applicant. It is further argued that subsequently, for partial noncompliance of the order of the Honourable Apex Court, the Municipal Corporation of Mumbai had to shell out cost of Rs. 2,00,000/. With this, it is argued that out of malice and ill-will the applicant is framed in a false charge of the offence punishable under Section 376 of the Indian Penal Code by some antisocial elements. It is argued that though in the FIR the prosecutrix had categorically narrated the theory of ejaculation while doing the act constituting the offence, subsequently, she modulated her version in her supplemental statement that she is not certain whether there was ejaculation or not and this happened when the applicant had shown his willingness to give his blood and semen sample immediately after knowing about the allegations against him. It is further argued that forensic evidence is totally against the prosecution case. The learned advocate for the applicant further argued that the anticipatory bail granted to the applicant is confirmed by the Hon''ble Apex Court.

As against this, in submissions of the learned Additional Public Prosecutor as well as the learned Advocate appearing for the prosecutrix, the challenge in the instant application is to the order rejecting the application for discharge and that order cannot be faulted because statement of the prosecutrix as well as her husband unerringly point out that there was forcible sexual intercourse with the prosecutrix. It is further argued that when there is variance in the occular evidence and the medical evidence, occular evidence always prevails. The learned Advocate appearing for the prosecutrix has also placed reliance on Judgment of the Honourable Apex Court in the matter of State of Maharashtra v. Priya Sharan Maharaj and Ors., (1997) 4 Supreme Court Cases 393 to point out the law on the point of discharge, which can be found in paragraph 8 of that Judgment.

I have carefully considered the rival submissions. I have also perused the record made available. The matter is to be considered from the angle whether it needs final hearing or it may be disposed of at the threshold itself.

The applicant has invoked inherent jurisdiction of this Court as envisaged by Section 482 of the Cr.P.C. It is well settled that such jurisdiction is to be exercised sparingly, carefully and with caution. It can be invoked to prevent the abuse of process of any Court or otherwise to secure ends of justice.

In the case in hand, prima facie, it is seen that the applicant had taken active part in an attempt to eradicate menace of hawkers in Mumbai and particularly in the area of his operation. Prima facie, it is seen that officers of the Municipal Corporation were against his activism and he had to lodge report to the superior officer pointing out that the subordinate officers of the Municipal Corporation were taking hawkers to him and telling the hawkers that the action is taken at the instance of the applicant. The matter seems to have went up to the Hon''ble Apex Court whether the NGO for which the applicant was working had given some suggestions and the Municipal Commissioner of Mumbai had accepted those suggestions which were adversely affecting the service career of municipal staff on finding that they were guilty of inaction and failure to perform their duty. It thus appears that the applicant who is a doctor by profession has invited wrath of the hawkers in the area so also that of municipal staff in the area.

The FIR in question is lodged on 17/05/2013 by the prosecutrix. According to the prosecution case, the prosecutrix was the regular patient of the applicant who was having clinic at Khar area of Mumbai. It is the case of the prosecution that the prosecutrix was suffering from Tuberculosis and she along with her husband had been to the clinic of the applicant routinely and on 17/05/2013 for medical check up and treatment. But prosecutrix averred that the applicant had asked her husband to go out of the examination hall and then committed rape on her and in that course, he had discharged semen in her vagina. Similar are her narrations to her husband soon after the incident. It is seen from the record that at the time of pendency of the Anticipatory Bail Application moved by the applicant before the learned Additional Sessions Judge, on the very first day itself, i.e. on 21/05/2013, he moved an application for collecting sample of his blood and semen. Strangely this request came to be opposed not only by the learned Advocate for the prosecutrix, but also by the learned APP. Ultimately under order of this Court said samples were collected by the prosecuting agency on 07/09/2013.

It is seen that within few hours of the alleged incident samples of vaginal swab and pubic hair of the prosecutrix were collected by the Government Medical Officer. The prosecutrix was medically examined at that time. No external or internal injury were seen on the person of the prosecutrix. In forensic examination of her vaginal swab and pubic hair, no male DNA, no semen or no spermatozoa were found. Then the piece cut from the bed-sheet allegedly stained with semen came to be seized from the examination hall of clinic of the applicant and it was also subjected to forensic examination. The forensic examination of the seized piece of bed-sheet was negative and no stains of semen were found on that piece of the bed-sheet.

According to version of the prosecutrix and her husband, the prosecutrix was all alone with the applicant when the alleged incident took place, whereas the Receptionist, who was undisputedly present in the clinic, has stated that the husband of the applicant was also present in the examination hall. Strangely enough the prosecutrix had not resisted or made a hue and cry even when she was knowing that her husband is in the clinic itself.

It is true that at the time of framing charge some prima facie evidence coupled with strong suspicion is enough to put the applicant/accused to the trial and this ratio can also be found from the ratio in the matter of State of Maharashtra v. Priya Sharan Maharaj & Ors. (supra), which is cited by the learned Advocate appearing for the prosecutrix. However, in the case in hand powers of this Court under Section 482 of the Cr.P.C. are invoked and the Court will have to test the material on record in order to ascertain whether prosecution launched against the applicant amounts to abuse of process of the Court and whether for securing the ends of justice proceedings in the present case needs to be quashed. Arguable points are certainly made out from Medical References relied by the learned Advocate appearing for the applicant. American Academy of Forensic Sciences has published the resolution of its Study in which it has been stated that the DNA can be found routinely at three-four days after coitus but also at five-six days post coitus and also 7 days post coitus using enhanced methods for DNA detection. It is seen from the paper published by Ryan Forensic DNA Consulting Newsletter that even in the absence of discharge of semen male epithelial cells can be found in the vaginal swab. In the case in hand though the sample of vaginal swab and pubic hair were collected soon after the incident by the Government Medical Officer, neither spermatozoa nor epithelial cells were found thereon. True it is that at this stage the Court is not required to conduct roving inquiry and to appreciate evidence adduced by the prosecution and to comment whether it is true or false, but the applicant has certainly made out a case for admission in order to examine whether such prosecution amount to abuse of the process of the Court in the light of the fact that because of his association with the NGO ''CitiSpace'', the applicant has invited wrath of hawkers and municipal staff of the locality and, therefore, the order :

(i) Admit.

(ii) Interim relief in terms of payer clause (d)

(iii) Put up for final hearing on 22nd June 2017.