Rajasthan High Court - Jaipur
Colonel J.S. Ghura vs State Of Rajasthan on 16 August, 1995
Equivalent citations: 1996CRILJ2158, 1996(3)WLC126
ORDER N.C. Kochhar, J.
1. The facts, giving rise to this petition under Section 482 of the Code of Criminal Procedure ("the Code") are as under:-
2. A dead-body of a youngman was found lying on the railway-tracks, in the railway-yard area, Ajmer, and the police had found a note (slip), stating that he was Dilip Singh and that he had come to Nasirabad for getting recruited in the Army and that Colonel J.S. Ghura (the petitioner) had demanded Rs. 15,000/- from him for getting recruited in the Army and on his refusal to pay the same, Colonel Ghura had got him declared unfit for recruitment and thereupon, he was committing suicide. The police registered a case at the Police Station - G.R.P., Ajmer, vide FIR No. 185/93 and during the investigation of the case contacted the Deputy Director General of Recruitments, who certified that the petitioner was not a member of the Selection-Board. The police also learnt that one Nenu Singh, who was an ex-soldier of the Army, had taken Rs. 10,000/- from the relations of the deceased, for getting the deceased recruited in the Army and after the completion of the investigation, the challan was filed under Section 306 of the Indian Penal Code (IPC), against Nenu Singh. The learned Judicial Magistrate committed the case to the Court of Session and the case was transferred to the Court of Additional Sessions Judge No. 2, Ajmer, who, on the basis of the record, vide the impugned order dated 27th September, 1994, summoned the petitioner, holding that in view of the note, left by the deceased, a case under Section 306, IPC, was also made out against the petitioner. Feeling aggrieved, the petitioner has approached this Court by filing this miscellaneous petition.
3. The record of the case, was called for the purposes of disposal of this petition.
4. I have heard the learned counsel for the parties.
5. Shri S.R. Bajwa, the learned counsel for the petitioner, has raised two points, firstly, that no cognizance could be taken against the petitioner, without a sanction under Section 197(2) of the Code, and secondly, that no case for summoning the accused under Section 306. IPC, at all, was made out, even if the allegations were correct.
6. Section 306, IPC, states that if any person commits suicide, whoever abets the commission thereof, shall be punished with imprisonment of either description for a term, which may extend to ten years and shall also be liable to fine.
7. In order to find out, whether the petitioner can be said to have committed the offence of abetment, in the present circumstances, the definition of Section 107, as appearing in the IPC, may be reproduced as under:-
"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; 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.
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 facilitates the commission thereof, is said to aid the doing of that act.".
8. As noted above, the learned Additional Sessions Judge has taken cognizance of the offence against the petitioner, oh the basis of the note in question. Even if it be taken that the petitioner had demanded the sum of Rs. 15,000/- from the deceased and on his refusal to pay the same, the petitioner had got the deceased declared unfit for recruitment to the Army, it cannot be said that the petitioner in doing so, had instigated the deceased for committing suicide or had engaged with anyone in any conspiracy for doing any such thing or had aided the deceased in committing suicide. To be fair to the learned Public Prosecutor, it may be mentioned that she very fairly conceded that the petitioner cannot be said to have abetted the commission of suicide, on the basis of the facts, mentioned in the note. A bare reading of Section 306 of the Code, under which, cognizance has been taken against the petitioner, shows that before such power can be exercised, it must appear to the Court that the person concerned had committed the offence, for which, he was required to be tried along with other accused. Before the power can be exercised, the Court must apply its mind to the facts of the case and to the evidence on record and should also advert to the statutory provisions in regard to the offence. In the present case, it appears that unfortunately, the learned Additional Sessions Judge did not advert to Section 107, to find out, whether on the basis of the note in question, the petitioner can be said to have abetted the commission of suicide by the deceased.
9. For the reasons mentioned above, 1 allow this petition and quash the impugned order dated 27th September, 1994, passed by the learned Additional Sessions Judge No. 2 Ajmer, in Sessions Case No. 11/1994 (85/1994) taking cognizance against the petitioner and summoning him to stand his trial under Section 306, IPC.
10. The petition stands disposed of accordingly.