Uttarakhand High Court
Jyotsna Sharma vs State Of Uttarakhand And Another on 10 March, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
RESERVE
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.1649 of 2021
Jyotsna Sharma ......Petitioner
Versus
State of Uttarakhand and another ....Respondents
Present:
Mr. Gaurav Singh and Mr. Pawan Mishra, Advocates for
the petitioners.
Mr. Lalit Miglani, A.G.A. for the State.
with
Criminal Misc. Application No.674 of 2021
Bhupesh Chauhan ......Petitioner
Versus
State of Uttarakhand and another ....Respondents
Present:
Mr. Mr. Pawan Mishra, Advocates for
the petitioners.
Mr. Lalit Miglani, A.G.A. for the State.
Mr. Pankaj Miglani, Advocate for respondent no.2.
JUDGMENT
Per: Hon'ble Ravindra Maithani, J.
Since common question of law and facts are involved in both these petitions, they are taken up together and decided by this common judgment.
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2. Challenge in both these petitions is made to the Charge sheet dated 05.12.2020 and summoning order dated 11.12.2020, passed in Criminal Case No. 834 of 2020, State Vs. Jyotsna Sharma and others, under Sections 306 and 120 B IPC by the court of Judicial Magistrate 2nd, Haridwar, District Haridwar (for short, "the case") and the entire proceedings of the case.
3. The informant (respondent no.2 herein) filed an FIR on 05.10.2020 under Section 306, 34 IPC against both the petitioners and others. According to it, in the intervening night of 5/6.10.2020 at 12:30, the informant spotted that his son Vivek Sharma had committed suicide. The police was informed. The dead body was taken down from the ceiling fan. A suicide note was recovered from the pocket of the deceased. In the suicide note, the deceased had held the petitioners and others responsible for his death. The petitioner Bhupesh Chauhan would threaten the deceased to life. The deceased was mentally harassed and he was under
depression. It is this FIR, in which, after investigation, charge sheet has been submitted against the petitioners under Sections 306 and 120B IPC. In this matter, on 11.12.2020 cognizance has been taken against the petitioners. It is impugned herein.3
4. Heard learned counsel for the parties and perused the record.
5. The deceased was husband of the petitioner Jyotsna Sharma. Jyotsna Sharma and her husband had litigation between them. The petitioner Jyotsna Sharma had filed a suit of divorce on 23.06.2020. She had also filed an application under Section 125 of the Code of Criminal Procedure, 1973 (for short, "the Code") on 05.08.2020. The deceased committed suicide in the month of October, 2020. Forensic report had confirmed that the suicide note was in the handwriting of the deceased. The suicide note is enclosed with the petition. The suicide note reads as hereunder:-
"I Vivek Sharma, son of Raja Ram Sharma, Dutt Kuteer, Kankhal Haridwar held Bhupesh Chauhan responsible for my death 9897338838 because of my dispute with my wife Jyotsna Sharma Bhupesh Chauhan is threatening me to life because I am not divorcing my wife Jyotsana Sharma therefore he is pressurising me that I should divorce her or else he would get me killed I had given a report to SSP. It was inquired from Kankhal Haridwar. It was inquired on 14.02.2020 by lau bhau Anand Mehra. Thereafter Bhupesh Chauhan has been continuously threatening me. The cause of my death is Bhupesh Chauhan.
Vivek Sharma"4
6. In the suicide note, reference to an application given by the deceased to SSP has been made. It is also recorded in the suicide note that inquiry dated 14.02.2020 was done in the matter.
7. The informant had filed the complaint made by the deceased to SSP, Haridwar as Annexure 2 with the counter affidavit filed in Criminal Misc. Application No. 1649 of 2021. It is quite in detail. A reading of it reveals that in this complaint of the deceased, the petitioner Bhupesh Chauhan has been addressed as boy friend of the petitioner Jyotsna Sharma. According to this report of the deceased, the petitioner Jyotsna Sharma used to spend most of her time with the petitioner Bhupesh Chauhan; Jyotsna Sharma was under the influence of the petitioner Bhupesh Chauhan; Jyotsna Sharma had been falsely complaining against the deceased under the pressure of the petitioner Bhupesh Chauhan.
8. Learned counsel for the petitioner Jyotsna Sharma would submit that no prima facie case is made out against the petitioner; she had matrimonial discord with the deceased; she had filed a suit for divorce and maintenance application against the deceased; the deceased had also filed a suit for restitution of conjugal rights, but it is argued that merely, because the petitioner Jyotsna Sharma was in 5 litigation with the deceased, it cannot be said that she committed offence under Section 306 IPC. Learned counsel would also submit that the petitioner Jyotsna Sharma is not named in the suicide note; she has not been attributed any positive act; there is no iota of evidence that the suicide was direct consequence of any act of the petitioner Jyotsna Sharma. It is argued that the order taking cognizance is bad. Hence, the petition deserves to be allowed.
9. On behalf of the petitioner Bhupesh Chauhan, it is argued that there is no allegation of instigation even if the prosecution case is accepted in its entirety. It is argued that at the most, it is offence under Section 506 IPC. It is also argued that even if there was some dispute with the petitioner Bhupesh Chauhan, the deceased had sufficient time for reflection and to come out from the alleged stress. Learned counsel would also argue that merely naming someone in the suicide note does not make such person liable for the offence under Section 306 IPC.
10. In support of his contentions, learned counsel for the petitioners have relied on the principles of law, as laid down in the cases of Sanju Vs. State of M.P., (2002) 5 SCC 371 and Gurcharan Singh Vs. State of Punjab, (2020) 10 SCC 200.
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11. In the case of Sanju (supra), the Hon'ble Supreme Court has dealt with the suicide note in that case and observed as hereunder:-
"13. The next and most important material is the suicide note left by the deceased. The translated copy is annexed to this appeal as Annexure P-1. It is extracted:
"Suicide Note Dainik Bhaskar 581, South Civil Lines, Jabalpur.
Agent's name -- Sengar News Agency Place -- Goshalpur Number of copies -- 409 Date Name of the person who prepared label Goshalpur Sengar has threatened to report under dowry demand and threatened to involve family members due to this I am writing in my full senses that Sanjay Sengar is responsible for my death. Sanjay Sengar also Mukraj commander loota tha Sanjay ki.
Sengar News Agency Goshalpur I was threatened therefore I am dying Sengar, Goshalpur My name Chander Bhushan Singh Goutam Chander Bhushan Singh Goutam Babloo Goutam In my senses Sengar responsible for my death. My Moti, Darling my Moti. You look after my Chukho. My darling Moti Neelam Sengar @ Chander Bhushan Singh Goutam, Gandhigram Budhagar.
Sengar is responsible for my death Sanjay Sengar is responsible for my death Sanjay Sengar is responsible for my death Chander Bhushan Singh Goutam, Gandhigram Budhagar."
"14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt Neelam Sengar. He was a frustrated man. Reading of the suicide note 7 will clearly suggest that such a note is not the handiwork of a man with a sound mind and sense.
.............................................................................................. .............................................................................................. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25-7-1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death."
12. In the case of Gurcharan Singh (supra), the Hon'ble Supreme Court observed "As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Section 107 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous."
13. On the other hand, learned State counsel would submit that the deceased and the petitioner Jyotsna Sharma had strained relationship. They were in dispute. Because of this dispute with the petitioner Jyotsna Sharma, the 8 petitioner Bhupesh Chauhan used to threaten the deceased to his life. The deceased had categorically recorded in the suicide note and briefly indicated as to how he was forced to commit suicide. The suicide note makes reference to a report given by the deceased to the SSP. The report to SSP given by the deceased reveals that both the petitioners were in relationship. The petitioner Jyotsna Sharma wanted divorce from the deceased, to which the deceased was not agreeable. For that reason, the petitioner Bhupesh Chauhan was threatening the deceased to life. Hence, it is argued that it is a case of abetment to suicide and criminal conspiracy and no interference is warranted in this case.
14. Learned counsel for the informant has relied upon the principles of law, as laid down in the case of Ude Singh and others Vs. State of Haryana, (2019) 17 SCC 301.
15. In the case of Ude Singh (supra), the Hon'ble Supreme Court has held as hereunder:-
"16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit 9 suicide, the case may fall within the four corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self- respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing, rural or urban set-ups, education, etc. Even the response to the ill action of eve teasing and its impact on a young girl could also vary for a variety of factors, including those of background, self- confidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstances."
16. It is a petition under Section 482 of the Code. This jurisdiction is exercised to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or other otherwise to secure the ends of justice. This is a jurisdiction much wide in its ramification, but at the same time much guided by the principles of law, as laid down by the Hon'ble Supreme Court in a catena of judgments.
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17. In the case of Indian Oil Corporation vs. M/S NEPC India Ltd., and others (2006) 6 SCC 736, the Hon'ble Supreme Court culled out the principles as hereunder:-
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre1 , State of Haryana v. Bhajanlal2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill3, Central Bureau of Investigation v. Duncans Agro Industries Ltd.4, State of Bihar v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT of Delhi6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.7 , Hridaya Ranjan Prasad Verma v. State of Bihar8, M. Krishnan v. Vijay Singh9 and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque10. The principles, relevant to our purpose are:- 1
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
1. (1988) (1) SCC 692 : 1988 SCC (Cri) 234
2. 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426
3. (1995) 6 SCC 194 : 1995 SCC (Cri) 1059
4. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045
5. (1996) 8 SCC 164 : 1996 SCC (Cri) 628
6. 1999 (3) SCC 259 : 1999 SCC (Cri) 401
7. (2000) 3 SCC 269 : 2000 SCC (Cri) 615
8. (2000) 4 SCC 168 : 2000 SCC (Cri) 786
9. (2001) 8 SCC 645 : 2002 SCC (Cri) 19
10. (2005) 1 SCC 122 : 2005 SCC (Cri) 283 11
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
18. The cognizance has been taken against the petitioners under Sections 306 and 120B IPC. Section 306 IPC provides for punishment for abetment to suicide. It read as hereunder:-
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"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
19. What is abetment is defined under Section 107 IPC it is as hereunder:-
"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; or 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.
20. In the case of Rajesh and another Vs. State of Haryana, 2019 SCC OnLine SC 44, the Hon'ble Supreme 13 Court, inter alia, observed that "in order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in a commission of a said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate to commission of suicide".
21. In the case of Shabbir Hussain Vs. State of Madhya Pradesh and others, 2021 SCC OnLine 743, the Hon'ble Supreme Court observed as hereunder:-
"5. Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707].
6. Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605]."
22. The law on this point has further been discussed by the Hon'ble Supreme Court in the case Arnab Manoranjan Goswami Vs. State of Maharashtra and others, (2021) 2 SCC 427. In this case, the Hon'ble Court observed that "before a person may be said to have abetted the commission of suicide, they "must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide" The Hon'ble Court 14 further observed that "abetment involves a mental process of instigating a person or intentionally adding a person in doing of a thing."
23. A man terminates his life and someone is held responsible for his death under Section 306 IPC, abetment Abetment in such cases is nothing but controlling the mind of deceased. Whether an accused, in fact, controlled the mind of the deceased and compelled him to commit suicide. This depends on facts and circumstances of each case.
24. FIR in the instant case records that the petitioner Bhupesh Chauhan would threaten the deceased to life. According to the FIR, the petitioner Jyotsna Sharma and others were also responsible for the death of the deceased Vivek Sharma. According to the suicide note, the petitioner Bhupesh Chauhan was threatening the deceased Vivek Sharma to life because the deceased was not ready to give divorce the petitioner Jyotsna Sharma. In his communication to SSP, which is filed as Annexure 2 by the complainant in his affidavit in Criminal Misc. Application No. 1649 of 2021, the deceased had categorically levelled allegations against both the petitioners. He has reported that the petitioner Jyotsna Shama would spend most of her time with the petitioner Bhupesh Chauhan and she was under
the influence of the petitioner Bhupesh Chauhan. It also 15 records that in the Bank also once the deceased was humiliated due to which his self esteem had lowered.
25. In his statement given to the Investigating Officer ("IO"), which has been filed by the State along with counter affidavit, the informant has stated that the deceased was much harassed by the petitioners. He used to cry before the informant, who is father of the deceased. In his subsequent statement given to the IO, the informant has categorically told it to the IO that the petitioner Jyotsna Sharma had extra marital relations with the petitioner Bhupesh Chauhan. They both used to spend most of the time inside the room.
26. At this stage of the proceedings, this Court cannot appreciate the evidence. Circumstances in totality has to be seen. There are allegations against the petitioners that the petitioner Jyotsna Sharma was in extra marital relations with the petitioner Bhupesh Chauhan; they would spend lot of time together in the room; the petitioner Jyotsna Sharma wanted to divorce the deceased, to which he was not agreeable; it is the allegation that because of this reason, the petitioner Jyotsna Sharma lodged false report against the deceased at the behest of the petitioner Bhupesh Chauhan; the petitioner Bhupesh Chauhan threatened the 16 deceased to life so as to compel him to divorce the petitioner Jyotsna Sharma.
27. It cannot be said that it is mere statement about harassment. The links have to be studied. Is it a case that the petitioner played an active role in tarnishing the self esteem and self respect of the deceased which eventually drove the deceased to commit suicide? Had the petitioners provoked, incited or encouraged the deceased to commit suicide? If it is so, in view of the judgment in the case of Ude Singh (supra) para 16.1, it amounts to abetment to suicide. But, these are deeper questions, which may only be examined and established during trial. At this stage, this Court cannot accept or reject the statement of the witnesses given to the IO. At this stage, this Court cannot conclude that averments levelled in the FIR are false or true. Fact remains, after investigation, the IO found the case established against the petitioner.
28. Having considered the rival submissions, under the facts and circumstances of the case, this Court is of the view that the allegations, which have been levelled against the petitioners in the instant case, definitely disclose prima facie offences under Section 306 and 120B IPC. Therefore, there is no reason to make any interference. Accordingly, the petitions deserve to be dismissed.
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29. Both the petitions are dismissed.
(Ravindra Maithani, J.) 10.03.2022 Jitendra