On Tuesday, 5 June, the special court at Patiala House in New Delhi decided to take cognisance of the charges filed by the Delhi Police against Congress MP Shashi Tharoor, in relation to the death of his wife Sunanda Pushkar. Tharoor has been charged under under Sections 306 (abetment of suicide) and 498A (cruelty by husband towards wife) of the Indian Penal Code (IPC).
Additional Chief Metropolitan Magistrate Samar Vishal scrutinised the 3,000-page charge sheet filed by the Delhi Police, and said there was sufficient ground for proceeding with a trial against Tharoor under these charges. Tharoor has been summoned to appear before the court on 7 July at 10 am.
The Congress MP from Thiruvananthapuram denied the charges in a statement released soon after the trial court decision was announced.
I find the charges preposterous and baseless, the product of a malicious and vindictive campaign against myself.Shashi Tharoor, Thiruvananthapuram MP, in a statement
Pushkar was discovered dead on 17 January 2014 in a room at the Leela Hotel in New Delhi. The initial FIR filed by the Delhi Police was against unnamed persons, and they only submitted the charge sheet on 14 May this year, over four years after her death. MP Subramaniam Swamy had filed an application asking to be involved in the prosecution of Tharoor, alleging destruction of evidence, which the court has yet to decide upon.
So what does the prosecution need to prove in this case, and what can we expect Tharoor to do now?
Section 306, IPC – Abetment of Suicide
The term ‘abetment’ covers instigation, conspiracy or aiding in some crime – in the context of suicide, it normally refers to instigation of the person who has committed suicide.
According to the Supreme Court, for a person to be convicted under this charge, they need to have a clear intention to instigate the suicide, and some action by them which makes the deceased think they have no other option. This requirement was summarised by Justice Dalveer Bhandari in M. Mohan vs The State (2011, SC) as follows:
“The intention of the legislature and the ratio of the cases decided by this court are clear that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”
Maximum Punishment: 10 years’ imprisonment
Section 498A, IPC – Cruelty
This offence in the IPC covers cruelty committed against a woman by her husband or a relative of her husband. The provision is more widely known for punishing dowry harassment, but cruelty under this section also covers any:
“willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”
This not only covers physical abuse, but can also cover mental cruelty. However, there must be some clear intent and some sort of specific action by the husband to cause the woman harm. For example, an extra-marital affair will in itself not be sufficient to constitute ‘cruelty’ under this section.
Maximum Punishment: 3 years’ imprisonment
Why Has Tharoor Been Charged Under Both These Offences?
Under Section 113A of the Indian Evidence Act, there is a presumption of abetment to suicide by a woman’s husband if she commits suicide within seven years of marriage and the husband has subjected her to cruelty as per Section 498A of the IPC.
However, as the Supreme Court has pointed out in the Pinakin Mahipatray Rawal vs State of Gujarat (2013, SC) case, there is still a requirement on the prosecution to show that the husband has committed cruelty, without which the presumption would not apply.
The charge under Section 498A is therefore essential to the case. If not proved, then Tharoor will be able to walk free unless the prosecution has some very concrete evidence of abetment of suicide that doesn’t relate to marital cruelty.
From what we know at present, the prosecution is alleging both mental and physical abuse of the deceased by Dr Tharoor. They are reportedly relying on emails and text messages between the couple, where Pushkar allegedly says she wishes to die, as proof of mental harassment; for physical abuse, they are reportedly pointing to injury marks on Pushkar’s body.
What Happens Now?
Now that the judge has taken cognisance of the offences, the case is at a stage known as ‘issue of process.’ Tharoor has been summoned on 7 July, and will now finally be provided with a copy of the charge sheet filed by the police. The prosecution is also supposed to have by now prepared a list of witnesses they will be relying on, which also needs to be provided to Tharoor.
Tharoor will then need to inform the court whether or not he intends to plead innocent or guilty to the charges. He has already made it clear from his statement that he will “vigorously contest these charges.”
Once the trial begins, the court can, upon consideration of the record of the case – the documents submitted and any additional arguments, discharge Tharoor under Section 227 of the Code of Criminal Procedure 1973 (CrPC), if it finds that there are insufficient grounds to proceed with the case. Even though cognisance has been taken on the basis that there are grounds to proceed, Tharoor can ask for this to be done later as well.
Even before the trial begins, Tharoor has the option of approaching the Delhi High Court to ask for a quashing of the charge sheet and the case against him under Section 482 of the CrPC. He can also approach the Supreme Court to ask for the same. Both courts are currently on vacation, and will reopen on 2 July, though Tharoor may try to approach the vacation bench to hear it urgently.
To get the case quashed, Tharoor will need to successfully argue that his trial is an abuse of the judicial process, that there are insufficient grounds to prosecute him, and that the special judge did not properly apply his mind when deciding to take cognisance of the offences. His statement appears to lay the groundwork for this:
If he fails to get the case dropped through discharge or quashing, then the trial will proceed.