IN THE COURT OF SESSIONS, BAMBI THANE. At Barata

IN THE COURT OF SESSIONS, BAMBI THANE At Barata S.C. No 123 of 2014 In the matter of Sec 227, 385, 501 and 502 of BPC read with Sec 120 B and Section 34 of Barata Penal Code State of Bambi Prosecution V. Mr. Panna Mr. Saba And Mr. Jaimil Accused Before the Honourable Sessions Judge Memorial on behalf of the Defence 1

TABLE OF CONTENTS INDEX OF AUTHORITIES---------------------------------------------------------------------3 STATEMENT OF JURISDICTION------------------------------------------------------------4 STATEMENT OF FACTS-----------------------------------------------------------------------5 STATEMENT OF CHARGES------------------------------------------------------------------6-8 SUMMARY OF ARGUMENTS----------------------------------------------------------------9 ARGUMENTS ADVANCED ------------------------------------------------------------------10-15 PRAYER--------------------------------------------------------------------------------------------16 2

INDEX OF AUTHORITIES Case Laws: Radhakrishnan v. State of Madras,1997 (decided on 17 th August, 1997, unreported) Girish Jadhav v. State of M.P AIR 1996 SC 3098 Ram Kishore v. State of U.P 2004 (1) Crimes All Taki Hussain, (1884) 7 All 311 Dinanath, 1939, Nag 644 Bibliography: 1. Prof. S.N.Misra, Indian Penal Code, Eighteenth Edition (Reprint) 2012, Central Law Publications, Allahabad. 2. Ratanlal and Dhirajlal, The Indian Penal Code, Thirty Second Enlarged Edition, 2010, LexisNexis, Butterworths Wadhwa Nagpur. 3. Ratanlal and Dhirajlal, Law of Evidence, Twenty Fourth Edition (Eco. P/B), 2011, LexisNexis, Butterworths Wadhwa Nagpur. 4. Sarkar, Law of Evidence, Vol I and II, Seventeenth Edition, 2010, LexisNexis, Butterworths Wadhwa Nagpur. 5. Prof. S.N.Misra, The Code of Criminal Procedure, 1973, Eighteenth Edition 2012, Central Law Publications, Allahabad. 3

STATEMENT OF JURISDICTION Since the offences alleged to have be committed by the Accused No.1 under Section 227 is separate and distinct and is in no way connected with the other offences of this case, the charges under Section 227 should be tried separately from the other offences since the joinder would cause grave injustice to the three accused. Therefore, the offences under Section 227 which is applicable only to Accused No.1 should be separated from the rest of the case and this case should be remitted to a Court of Judicial Magistrate having jurisdiction try the offences. 4

STATEMENT OF FACTS 1. That on March 2013, The Supreme Court of Barata convicted Mr. Panna as guilty under Arms Act, 1959 and sentenced him to 5 years rigorous imprisonment. That after the conviction of Mr. Panna (Accused No.1), Ms. Naika, an actress with whom a Film named Hit Factory (hereinafter referred as the said movie) was signed, refused to pursue it fearing loss of reputation. 2. That on 05.02.2014, Mr. Saba (Accused No. 2), the Producer of the said Movie and Mr. Jaimil (Accused No. 3), the Director, visited Ms. Naika s residence to convince her to complete the movie, but she refused without any justifiable cause. 3. That Mr. Panna came out on parole on 03.02.14 on the ground of his wife s ill health who was admitted and being treated at Star Hospital. The aforementioned hospital is reputed for renting the premises for shooting. On 06.02.2014, Mr. Jaimil having complaint of chest pain got admitted in Star Hospital, wherein some shooting was in progress. Mr. Panna was also seen in the Hospital interacting with the Movie Crew. 4. That on 08.02.2014, a serial was being shot with Miss Poonam, budding starlet and Smt. Mashaalji in Star Hospital. Mr. Panna who was in the hospital to see his wife, met and interacted with Smt. Mashalji during the shooting in the hospital premise. Thereafter, the shooting proceded to the Central Mall. 5. That on 14.02.2014, Ms Naika saw ads about the release of the said movie. And thereby filed an injunction on 16.02.2014, in the High Court of Bambi seeking permanent injunction against its release and on the same evening received two threatening calls to co-operate in completion of the movie which lead Miss Naika to file a complaint on 17.02. 2014 and hence the present case. 5

STATEMENT OF CHARGES I..., Sessions Judge of Bambi Thane, hereby charge you Mr. Panna, Mr. Saba and Mr. Jaimil as Follows That you on or about the 14 th of February 2014, did printed a defamatory matter in the ads in prominent newspaper and magazine, thus intentionally causing defamation to Ms. Naika and thereby committed an offence u/s 501 of B.P.C and within the cognizance of Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Sd/- Sessions Judge Bambi Thane I..., Sessions Judge of Bambi Thane, hereby charge you Mr. Panna, Mr. Saba and Mr. Jaimil as Follows That you on or about the 14 th of February 2014, did knowingly offered for sale in the form of ads in prominent newspaper and magazine, a defamatory matter relating to Ms. Naika and thereby committed an offence u/s 502 of B.P.C and within the cognizance of Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Sd/- Sessions Judge Bambi Thane 6

I..., Sessions Judge of Bambi Thane, hereby charge you Mr. Saba and Mr. Jaimil as Follows That you on or about the 16 th of February 2014, at 6.05 PM and 6.15 PM threatened Ms. Naika over a phone call to withdraw her Injunction Suit from the High Court of Barata and further threatened Ms. Naika to complete a movie and thereby committed an offence u/s 385 of B.P.C and within the cognizance of Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Sd/- Sessions Judge Bambi Thane I..., Sessions Judge of Bambi Thane, hereby charge you Mr. Panna, as Follows That you on subsequent to release on parole on 3 rd February, did knowingly entered into business activities thereby violated the condition imposed while on parole and thereby committed an offence u/s 227 of B.P.C and within the cognizance of Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Sd/- Sessions Judge Bambi Thane 7

I..., Sessions Judge of Bambi Thane, hereby charge you Mr. Panna, Mr Saba and Mr. Jaimil, as Follows That you in connivance of all had knowingly entered into criminal conspiracy and thereby committed an offence under Section 120-B of B.P.C and within the cognizance of Court of Sessions. And I hereby direct that you be tried by this Court on the said charges. Sd/- Sessions Judge Bambi Thane 8

SUMMARY OF ARGUMENTS 1. Whether the act of the accused Mr. Panna comes within the purview of Section 227 of B.P.C? 2. Whether the accussed Mr. Saba and Mr. Jaimil threatened Ms. Naika over a phone call to complete the movie and thereby committed an offence punishable u/s 385 of B.P.C? 3. Whether all the accussed had printed and offered for sale, in the form of an ad, a defamatory matter relating to Ms. Naika and thereby punishable u/s 501 and u/s 502 of B.P.C? 4. Whether all the accussed had conspired together to complete the movie through an act though legal but through illegal means in pursuance to an agreement and thereby punishable u/s 120 B read with Section 34 of B.P.C? 9

ARGUMENT ADVANCED I. Whether the act of the accused Mr. Panna comes within the purview of Section 227 of B.P.C? 1. The accused Mr. Panna was granted Parole on February 03, 2014 on the ground of his wife s ill health, who was admitted at Star Hospital. He visited the hospital everyday to attend to her and visits with her daughter on most of the occasions. As such, he had not violated any conditions of his Parole. 2. Further, Section 227 of B.P.C deals with violation of condition of remission to be granted by the Appropriate Government under Section 432 of the Code of Criminal Procedure,1973. The term Parole and Remission are different from one other and the conviction for an offence punishable u/s 227, B.P.C could not be maintained in view of the fact that the non-fulfilment of the conditions imposed while releasing the accused on Parole will not come within the purview of section 227 of B.P.C. 3. In the case of Radhakrishnan v. State, the Hon ble High Court of Madras on (17 th of August,1997), has clearly ruled that violation of parole if any, do not come within the purview of Section 227 of IPC as Section 227 specifically deals with violation of condition of remission under section 432 of the Criminal Procedure Code,1973 1 4. Even if, for the sake of argument, if we assumed that the accused Mr. Panna had violated any conditions of his Parole, then the appropriate authority would be the Parole Board and not Court of Session. As such in view of the factual records of the case and the provision of law and decision cited above the charge is liable to be dismissed and set aside. 1 Radhakrishnan v. State of Madras,1997 (decided on 17 th August, 1997, unreported) 10

II. Whether the accussed Mr. Saba and Mr. Jaimil threatened Ms. Naika over a phone call to complete the movie and thereby committed an offence punishable u/s 385 of B.P.C? 5. The Prosecution has failed to establish the case beyond reasonable doubt that the call purported to be received by Miss Naika has been made by the accused No.2 and No. 3. The investigation carried and evidence exhibited suffers from many material irregularities and shortcomings, which is fatal to the prosecution case. The Transcript (Annex.4) containing the call record details of Ms. Naika (PW 4), does not corroborates with her Statement recorded u/s 161 of Code of Criminal Procedure. And hence the said Transcript Report is not a credible piece of evidence that can be used in a trail. 2 6. The Transcript of call records (Annex.4) cannot be appreciated as Admissible Evidence because the Prosecution had failed to produce a Certificate of Authenticity signed by a person occupying a responsible official position as laid down u/s 65 B (4) of the Indian Evidence Act.1872. Further, a Competent Witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken, was not examined or invited as a Prosecution Witness. (State v. Navjot Sandhu, AIR 2005 SC 3820). 7. The voice of accussed were not examined and verified by the Forensic Experts and as such, it cannot be used to corroborate the Statement of PW 4 recorded under Section 161 3. It is also pertinent to state here that no independent investigation was carried out by the Investigation Officer (PW 2) to ascertain the voices of the accused and mere suspicion regarding the calls made by the accused cannot be a ground of conviction. Hence, the accused cannot be convicted based on such mere allegation. 2 Girish Jadhav v. State of M.P AIR 1996 SC 3098 3 Ram Kishore v. State of U.P 2004 (1) Crimes All 11

8. It is argued that the call could have been made by anybody or any fan of Mr. Panna. Everybody knew about the fact that she approached the Hon ble High Court of Bambi seeking Injunction over the release of the movie which may irritate a lot of people directly or indirectly interested in the release of the movie. It may also be a cheap publicity stunt of the prosecutrix (P.W. 5), or it may also be a calculated move of the prosecutrix to prevent the movie from being released. 9. The movie in question was signed much after 1993, when Mr. Panna was arrested under TADA, the news of which was in public domain and she had no problem then. Only later, when prosecutrix became the celebrity-representative of Counter-Terrorism Implementation Task Force (CTTIF) of United Nations, and the Express of Barata carried the news, she became hesitant and refused to associate with the Mr. Panna. The Prosecutrix was under a contractual obligation to complete the movie which she was deliberately avoiding. It is pertinent to note that the Prosecutrix had no any other legal route to prevent the movie from being released solely on the ground that she did not want to seen in a movie with a person convicted of an offence. 12

III. Whether all the accused had printed and offered for sale, in the form of an ad, a defamatory matter relating to Ms. Naika and thereby punishable u/s 501 and u/s 502 of B.P.C? 10. That the Accused No.1,2 and 3 have been wrongly implicated on charges of defamation, as the statement so published in the form of Advertisements in papers and magazine are matters pertaining facts and as such are not defamatory. It was published to inform the public about the release of their upcoming movie and without any intention or knowledge or belief that such publication would harm the reputation of any person or to defame any person. 11. That it is a matter of record that the prosecutrix have been signed for the movie and have also performed in the movie by completing almost the entire movie, and as such the publishing and selling of the alleged defamatory matter with pictures of the prosecutrix and name so engraved is within the standards adopted by the film industry. 12. That the publication and sale of alleged defamatory matter through paper and magazine does not amount to defamation as the practice of publication and sale of advertisement showing and inferring release of movie is the standard of procedure/ technique adopted by the film industry before releasing a movie so as to enable the public the knowledge of of the film so going to be released. As such, thereby there was no any intention on the part of Accused No.1, 2 and 3 to bring imputation (by causing harm) to the prosecutrix by way of such publication and sale of the alleged advertisement showing movie to be released. That the term harm is in case of defamation is not taken in its ordinary sense in which it is used. By harm is meant imputation on a man s character made and 13

expressed to others so as to lower him in their estimation. Anything which lowers him merely in his own estimation does not constitute defamation 4 13. Furthermore, there is already an injunction petition filed by the Prosecutrix, on the release of the movie before the Hon ble High Court of Bambi, which is pending disposal, as such the charges under this case of alleged defamation is hit by Section 10 of the Code of the Civil Procedure,1908, as the matter being sub judice. 14. That furthermore, the contention of the prosecutrix, if associated with Accused No. 1 will in any way will lower her image, cannot be a ground for unilateral repudiation of her contractual obligation. She has neither issued a Notice nor have taken any legal recourse for the rescission of her contract or to restrain the release of the movie before the release of the advertisement so floated on the February 14 th, 2014. Therefore, as such, Accused No.2 and 3 are perfectly within legal capacity to issue/ release the stated poster alleged to contain the defamatory matter. 4 Taki Hussain, (1884) 7 All 311 14

IV. Whether all the accussed had conspired together to complete the movie through an act though legal but through illegal means in pursuance to an agreement and thereby punishable u/s 120 B read with Section 34 of B.P.C 15. That the Accused No. 1,2 and 3 cannot be tried together under Section 120-B read with 34 as there was no prior meeting of the minds. 16. Section 120-B requires an agreement to commit an illegal act with a common intention. There should be unity of criminal behavior resulting in something, for which an individual would be punishable if it were all done by himself alone. 5 For cases under section 120-B it has to be proved that the accused pursued their acts forming the same objects by the same means, where one forms one part of the act and the other forms another part of the same act, so as to complete it with a view to attain the object which they were pursuing. The prosecution has failed to prove beyond reasonable doubt that the three Accused had a common intention of defaming the prosecutrix. Nor can it be shown or proved beyond reasonable doubt that Accused No. 2 and 3 were involved in the alleged threatening calls or a conspiracy to execute such a call. 17. Therefore, the prosecution has failed to prove beyond reasonable doubt, either the commission of an offence by any of the three accused or a conspiracy/ agreement to commit an offence in pursuance of the common intention. As such, the three accused cannot be brought within the ambit of Section 120-B read with Section 34 of BPC and hence cannot be tried together. 5 Dinanath, 1939, Nag 644 15

PRAYER In the premises aforesaid and in view of the facts and circumstance of the case, provisions of law and argument advanced, it is humbly prayed before this honourable Court that 1. The Prosecution has failed to prove beyond reasonable doubt, that the accused Mr. Panna, Mr. Saba and Mr. Jaimil had not committed a criminal conspiracy against Ms. Naika, punishable u/s 120 B read with Section 34 of B.P.C and they be acquitted of the Said Charges. 2. The accused be acquitted of the charges u/s 501 and u/s 502 since the accused had not printed or offered sale of any defamatory matter against Ms. Naika. 3. The accused Mr. Panna be acquitted of the charges u/s 227 of B.P.C as his case don t falls under Remission but Parole. 4. That the accussed Mr. Saba and Mr. Jaimil be acquitted of Charges u/s 385 because they have not committed any kind of threatening Phone Calls to put Ms. Naika into fear. Hence the accused Mr. Panna, Mr. Saba and Mr. Jaimil be granted acquittal. Counsel on behalf Defence 16