Himachal Pradesh High Court
Mr. Harish Sharma vs Harish Sharma And Ors on 7 July, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF JULY, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION NO.141 of 2021
.
Between:-
1. MR. HARISH SHARMA,
AGED ABOUT44, S/O LATE
SHRI RAM LUBHAYA
SHARMA, R/O WARD NO.1,
VPO SAMOOR KALAN,
TEHSIL AND DISTRICT UNA,
HP- 174303
2. MR. SURINDER SHARMA,
S/O LATE SHRI YASH PAL
SHARMA, R/O H.N. 1357,
WARD NO.4,VIKAS NAGAR,
UNA, HP- 174303
3. MR. DEBASIS GUPTA, S/O
LATE SHRI SUNIL BARAN
GUPTA, R/O 202, ACHAL-2,
OPP SHUKALA NAGAR
WATER TANK, BEHIND
UNITED COLONY SAMA,
VEMAILI, VADODARA,
GUJART-390008.
4. MR. KALLOL
CHAKROBORTI S/O SHRI
BISHNU PADA
CHAKRABORTY, R/O FLAT-
906, LINCOLN-A, GRAND
OMAX, SECTOR-93-b,
SALARPUR, GAUTAM
BUDDHA NAGAR, NOIDA,
UTTAR PRADESH.
5. MR. JANESH PRANAY, S/O
SHRI BASISTHA SHARMA,
R/O NEW CMRI COLONY,
DHANBAD, JHARKAHAND-
826004.
......PETITIONERS
::: Downloaded on - 24/07/2022 23:07:52 :::CIS
2
(BY N.S. CHANDEL, SENIOR
ADVOCATE WITH MR. VIPUL
SHARDA AND MR. ANEESH J.P.,
ADVOCATES)
AND
.
1. STATE OF HIMACHAL
PRADESH.
2. MR. DINESH KUMAR, S/O
HARIKISHAN, R/O LOWER
PANJAWAR HAROLI, UNA,
HIMACHAL PRADESH-
177208.
(MR. NARINDER
r GULERIA,
to ..... RESPONDENTS
ADDITIONAL ADVOCATE
GENERAL, FOR R-1.
MR. VIJAY CHAUDHARY,
LEGAL AID COUNSEL, FOR R-
2)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the
following:
ORDER
Instant criminal revision petition filed under Section 397/401 of Cr.P.C, is directed against the order dated 25.02.2021, passed by Additional Sessions Judge (1) District Una, H.P. in Sessions Trial No. 49/2019, titled State Vs. Harish Sharma and Ors., arising out of FIR No.154/2018, dated 25.05.2018, registered at Police Station Haroli, District Una, H.P., whereby charges under Section 306 read with ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 3 Section 34 IPC, came to be framed against the petitioners for their having allegedly abetted/instigated deceased Anil Kumar to commit suicide.
.
2. Precisely, the facts of the case, as emerge from the record are that on 25.05.2018, complainant Dinesh Kumar, son of Sh. Hari Krishan, made a statement under Section 154 Cr.P.C to the police, stating therein that he is resident of Lower Panjawar Haroli and they are two brothers and one sister. Above-named person alleged that he and his brother were employed at INOX WIND Company at Basal, as Technicians. He alleged that his brother Anil Kumar alongwith other employees of the company were not paid salary by the company for the last three months nor they had received the increments, as a consequence of which, employees of the company were on strike for the last 10 to 15 days. Complainant alleged that complaint was filed by the employees of the company with Labour Inspector, Una, who after having summoned the parties, directed H.R of the company to place a notice on the notice board of the company mentioning therein the date on which the salary to the employees shall be paid. Complainant alleged that no such notice was displayed by the company, rather management transferred four employees of the company from Una to Rajasthan. Though request was made to the company to cancel their transfer, but such request was declined, as a consequence of which, brother of the complainant Anil Kumar, started remaining mentally disturbed. Complainant alleged that on 25.05. 2018, Anil Kumar left his house for work and at about 2 P.M., consumed some poisonous ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 4 substance and was found lying unconscious in Panchayat Ghar at Village Khad. Complainant alleged that his brother Anil Kumar was forced to consume poison on account of harassment meted to him by .
H.R. Sharma in connivance with Kalol Chakrawarty, Deva Ashish Gupta, Jainish Gupta and Surinder Pal. On the basis of aforesaid statement recorded under Section 154 Cr.P.C, FIR sought to be quashed, came to be instituted against the petitioners. After having completed investigation, police presented challan in the competent court of law, which vide order dated 25.02.2021, proceeded to frame charges against the petitioners under Section 306, read with Section 34 IPC, to which they pleaded not guilty and claimed trial. Being aggrieved on account of framing of charges, as detailed hereinabove, petitioners have approached this Court in the instant proceedings for quashing of order dated 25.02.2021, framing charges as well as consequent proceedings pending in the competent court of law.
3. Pursuant to notice issued in the instant proceedings, respondent-State has filed reply, wherein it has been stated that during investigation, it was found that deceased Anil Kumar was under
depression on account of non-payment of salary and his transfer to the State of Karnataka. It has been further stated in the reply that there is overwhelming evidence available on record suggestive of the fact that deceased Anil Kumar consumed poison on account of his being harassed and maltreated by the petitioners.
4. Though notice was issued to the respondent No.2/complainant in the case at hand, but he chose not to come ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 5 present despite service and as such, this Court requested Mr. Vijay Chaudhary, Advocate, to render assistance on behalf of the complainant as Legal Aid Counsel.
.
5. Mr. N.S. Chandel, learned Senior Counsel representing the petitioners while making this Court to peruse contents of FIR as well as Final Report filed under Section 173 Cr.P.C in the competent court of law, strenuously argued that no case much less under Section 306 read with Section 34 IPC is made out against the petitioners. He argued that bare perusal of FIR nowhere discloses the offence, if any, under Section 306 IPC.
r Mr. Chandel, argued that sole reason, as portrayed by prosecution for committing suicide by deceased Anil Kumar is that he was not being paid salary and was transferred to State of Karnataka . Mr. Chandel, argued that even if, aforesaid reasons cited by the prosecution are accepted, by no stretch of imagination, petitioners can be held liable for their having committed offence, if any, punishable under Section 306 IPC. Mere non-payment of salary and transfer order issued by the company, cannot be a ground to commit suicide, especially, when it stands duly established on record that it was not only the deceased Anil Kumar, whose salary was not paid, rather majority of employees were not paid salary and they had approached Labour Officer, Una, who after having mediated inter se parties, directed management of the INOX WIND Company at Basal to pay the salary. Mr. Chandel, further argued that as per own case of the prosecution, it was not only deceased Anil Kumar, who was transferred from Basal, Una to States of Rajasthan and Karnataka, ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 6 rather 41 employees in total were transferred from Himachal Pradesh to other parts of the Country. Mr. Chandel, argued that no suicide note ever came to be recovered containing allegations, if any, of harassment .
and torture meted to deceased Anil Kumar by the petitioners, rather case came to be registered on the basis of statement made by his brother, who simply stated that his brother was under depression on account of non-payment of salary. While making this Court to peruse provision contained under Section 306 of IPC, Mr. Chandel, argued that it is/was incumbent upon prosecution to prove that accused named in the FIR, abetted/instigated deceased to commit suicide, however, in the case at hand, no such evidence is available on record. Mere non-
payment of salary cannot be considered to be abettment or instigation to commit suicide because it was not only deceased Anil Kumar, who was not paid salary, rather all other employees were not paid salary and they had agitated that issue before the Labour Officer, Una. Lastly, Mr. Chandel argued that otherwise also, there is no positive evidence adduced on record to connect accused named in the FIR with the offence alleged to have been committed by them and as such, there is every likelihood of their being acquitted and no fruitful purpose would be served by putting them to protracted trial, which otherwise on account of lack of evidence, is likely to fail.
6. Mr. Narinder Guleria, learned Additional Advocate General representing respondent No.1/State and Mr. Vijay Chaudhary, learned legal aid counsel, representing the respondent No.2/complainant, supported the order of framing of charges. They argued that at the ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 7 time of framing of charges, entire evidence collected on record is not required to be taken into consideration, rather at that stage, Court is only to see whether prima facie case, if any, is made out against the .
accused named in the FIR or not. Above-named counsel while making this Court to peruse the statement of complainant under Section 154 Cr.P.C, argued that since it stands duly established on record that deceased Anil Kumar was not being paid salary and he was transferred to State of Karnataka, it can be safely inferred that he was compelled to commit suicide after being harassed and mentally tortured by accused named in the FIR. Mr. Vijay Chaudhary, while making this Court to peruse statements of Ramesh Chand and Hari Krishan, who happen to be father and uncle of the deceased, recorded under Section 161 Cr.P.C, argued that while deceased Anil Kumar was being taken to hospital, he categorically disclosed to aforesaid persons that he committed suicide on account of non-payment of salary and harassment being meted to him by the management.
7. I have heard learned counsel representing the parties and gone through the record.
8. Before considering the rival submissions having been made by learned counsel representing the parties vis-à-vis prayer made in the instant petition, this Court at the first instance deems it necessary to discuss/elaborate scope and competence of this Court to set aside the impugned order framing charges as well as consequent proceedings, if any, pending in the competent court of law while exercising power under Section 482 Cr.P.C.
::: Downloaded on - 24/07/2022 23:07:52 :::CIS 89. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others,1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is .
entitled to quash the proceedings, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
10. Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335,the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or prosecution.
11. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 9 Cr.PC., to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, .
care and circumspection. In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC,, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30) ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 10
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or .
even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of r the Cr.P.C . the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 11 for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a .
prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule r the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant;
and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal -proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 12 clear that the same would not conclude in the conviction of the accused."
12. Hon'ble Apex Court in case titled Amit Kapoor v. Ramesh .
Chander and Anr, (2012) 9 SCC 460 held that framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Cr.PC unless the accused is discharged under Section 227 Cr.PC.
The Hon'ble Apex Court has further held that under the Section 227and 228 Cr.PC, the Court is required to consider the 'record of the case' and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall proceed to frame the charge. The Hon'ble Apex Court has further held that once the facts and ingredients of the Section concerned exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. Most importantly, the Hon'ble Apex Court in the aforesaid judgment has concluded that the satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. At this stage, this court deems it fit to reproduce the following paras of aforesaid judgment having been passed by the Hon'ble Apex Court as follows:-
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 13 with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various .
judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 14 interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or .
quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 15 and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark .
upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 16 of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13. Quashing of a charge is an .
exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist."
13. The Hon'ble Apex Court in judgment titled L. Krishna Reddy v. State by Station House Officer and Ors, (2014) 14 SCC 401, has held that Court is neither substitute nor an adjunct of the prosecution, ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 17 rather once a case is presented to it by the prosecution its bounden duty is to sift through the material to ascertain whether prima-facie case has been established, which would justify and merit the .
prosecution of a person. The relevant paras are as follows:-
"10. Our attention has been drawn to Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia as well as K. Narayana Rao but we are unable to appreciate any manner in which they would persuade a court to continue the prosecution of the parents of the deceased.
After considering Union of India v. Prafulla Kumar Samal, this Court has expounded the law in these words: (Stree Atyachar Virodhi Parishad case, SCC p. 721, para 14)
"14. ... In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that r there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into"
11. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 18 through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in .
perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured. We hasten to clarify that we think the statements of the complainant are those of an anguished father who has lost his daughter due to the greed and cruelty of his son-in-law. As we have already noted, the husband has taken his own life possibly in remorse and repentance. The death of a child even to avaricious parents is the worst conceivable punishment."
14. Aforesaid exposition of law laid down by Hon'ble Apex Court from time to time, clearly reveal that High Court while exercising power under Section 482 Cr.P.C can proceed to quash charge, if it is satisfied that evidentiary material adduced on record would not reasonably connect the accused with the crime and if trial in such situation is allowed to continue, person arrayed as an accused would be unnecessarily put to arduous of the protracted trial on the basis of flippant and vague evidence.
15. Careful perusal of FIR as well as Final Report filed under Section 173 Cr.P.C, if read in its entirety, reveal that entire case of the prosecution is based upon the statement of complainant Dinesh Kumar, recorded under Section 154 Cr.P.C, wherein, he stated that his brother deceased Anil Kumar was under depression on account of non-
payment of salary for the last three months. Apart from above, police ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 19 has also recorded statements of father and uncle of deceased namely Ramesh Chand and Hari Krishan, who in their statements recorded under Section 161 Cr.P.C, stated to the police that while deceased was .
being taken to hospital, he disclosed to them that he has taken this extreme step of committing suicide on account of harassment and mental torture meted to him at the hands of accused. Admittedly, no suicide note, if any, ever came to be recovered containing allegations, if any, of mental harassment and torture at the hands of accused named in the FIR. No doubt, Final Report filed under Section 173 Cr.P.C, reveals that prior to alleged incident, there was strike in the factory named INOX WIND Company at Basal, Una (H.P) on account of non-payment of salary and Labour Officer, Una, mediated inter se parties and asked H.R of the company to display on the notice board by which date salary shall be paid. It has also come in the Final Report filed under Section 173 Cr.P.C that initially management transferred four employees, but subsequently, ordered transfer of 41 employees including Anil Kumar. Though, in the case at hand, Mr. Vijay Chaudhary, learned counsel representing the respondent No.2/complainant argued that deceased was transferred before his having committed suicide, but investigation nowhere reveals that transfer order, if any, with regard to transfer of deceased stood passed prior to his having committed suicide, rather it reveals that before deceased committed suicide, four employees of the company were transferred to State of Rajasthan. Order transferring deceased along with other 41 employees came to be notified to the deceased after his ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 20 death and as such, it may not be right to conclude, at this stage, that deceased was in the knowledge of his transfer to State of Karnataka at the time of his having committed suicide.
.
16. Leaving everything aside, there is no evidence worth credence available on record suggestive of the fact that deceased was singled out by the management of the company and he was only employee, who was not being paid salary, rather as per own case of prosecution, there was dispute inter se employees and management of the company qua the non-payment of salary. As per record, 89 employees were not being paid salary and as such, they had gone on strike. Similarly, it is not only deceased, who was transferred to State of Karnataka, rather in total 41 employees were ordered to be transferred from State of Himachal Pradesh to States of Rajasthan and Karnataka. Otherwise also, as per condition No.10 of the appointment order, as placed on record along with Final Report filed under Section 173 Cr.P.C, employee of the company was liable to be transferred to any of the unit of the company in India or Abroad and as such, employee definitely cannot have any grouse qua the same.
17. Interestingly, in the case at hand, three other employees, namely, Shiv Sani, Rohit Kumar and Chaman Lal, who were transferred alongwith deceased Anil Kumar to other States, deposed to the police that deceased Anil Kumar was under mental tension on account of non-payment of salary, but that may not sufficient to conclude guilt, if any, of the accused named in the FIR punishable under Section 306 IPC. Record reveals that only two accused namely, ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 21 Harish Sharma and Surender being H.R and Dispatcher, used to sit regularly in factory premises at Basal, Una and none of other accused named in the FIR had any kind of direct dealing with the deceased Anil .
Kumar and other employees. Persons, who were working in the factory, as named hereinabove, were also employees of the company like deceased and other employees, who had gone on strike.
Decision, if any, with regard to hike in salary or payment of salary, if any, was to be taken by the management, who never came to be named in the FIR. Moreover, record reveals that persons named in the FIR as accused, were not also paid salary for last three months.
Report of Labour Officer made available to the Court along with Final Report filed under Section 173 Cr.P.C clearly indicates that decision to transfer employees was not of the persons named in the FIR, rather such decision was taken by the management and as such, it is not understood how persons named in the FIR, can be held liable for harassment and torture, if any meted to the deceased employee and other employees of the company. If the statements made by complainant as well as other prosecution witnesses adduced on record by prosecution, are read in entirety, precisely the case of the prosecution against the accused named in the FIR is that deceased was under depression on account of non-payment of salary and he was compelled to take drastic step of committing suicide on account of non-payment of salary, but that may not be sufficient to conclude, guilt, if any of the persons named in the FIR. To prove allegation, if any, under Section 306 IPC, it is incumbent upon the prosecution to prove ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 22 abetment or instigation, if any, at the hands of accused named in the FIR, which is totally missing in the case at hand. At this stage, it would be apt to take note of provision contained under Section 306 of IPC, .
which reads as under:-
"Section 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."
Abetment is defined under Section 107 of IPC, which reads as under:-
"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 willful misrepresentation, or by willful concealment of a material fact which he is bound to dis- close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 23 intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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 facilitate the commission thereof, is said to aid the doing of that act."
18. Abetment is defined under Section 107 of IPC,which reads as under :-
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1. "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. 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 there of, is said to aid the doing of that act."
19. Similarly, the dictionary meaning of the word instigate' is to bring about or initiate, incite someone to do something. The Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh 2001 9 SCC 618 has defined the word 'instigate' as instigation is to goad, urge forward, provoke, incite or encourage to do an act."
20. Hon'ble Apex Court in case of S.S.Cheena Vs. Vijay ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 24 Kumar Mahajan and Anr. (2010) 12 SCC 190 has dealt with scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC.
Relevant pars of the aforesaid judgment read as under:
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"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is 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 that act must have been intended to push the deceased into such a position that he committed suicide."
21. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police (2019) 3 SCC 315, the Hon'lbe Apex Court has held as under:
"The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
22. The Hon'ble Apex Court in Ude Singh & Ors. Vs. State of Haryana, 2019 17 SCC 301, has held that in cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 25 offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, .
the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
23. Recently, the Hon'ble Apex Court in a case (Geo Varghese v. State of Rajasthan and Anr, 2021 (4) RCR (Criminal)
361) where student committed suicide after being reprimanded by the teacher/administration, categorically held that reprimanding student would not amount to instigation to commit suicide. Relevant para of the aforesaid judgment reads as under:
27. It is a solemn duty of a teacher to instil discipline in the students. It is not uncommon that teachers reprimand a student for not being attentive or not being upto the mark in studies or for bunking classes or not attending the school. The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline, in our considered opinion, would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason. A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 26 instigation or intentionally aid to the commission of a suicide by a student.
28. 'Spare the rod and spoil the child' an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school .
authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24
(e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.
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32. Considering the facts that the appellant holds a post of a teacher and any act done in discharge of his moral or legal duty without their being any circumstances to even remotely indicate that there was any intention on his part to abet the commission of suicide by one of his own pupil, no mens reacan be attributed. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under section 306 IPC do not exist .........................................
40. In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.
In the aforesaid judgment, the Hon'ble Apex Court has categorically held that simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 27 amount to instigation or intentional aid to the commission of a suicide by a student. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under Section 306 .
IPC do not exist. Apart from above, the Hon'ble apex Court has held that victim committed suicide allegedly for being reprimanded for repeatedly bunking classes. Reading of victim's suicide note shows that same was penned by immature and hypersensitive mind, thus act of accused being teacher would not ordinarily induce a circumstances to a student to commit suicide. In the case at hand, brother of deceased lodged complaint that his deceased brother committed suicide after his being denied salary by the accused named in the FIR, but since decision with regard to payment of salary or hike in salary was to be taken by the management of the company and accused named in the FIR were merely holding managerial positions in the company, by no stretch of imagination, inaction, if any on their part to display the date for payment of salary on noticeboard and action of issuance of transfer order under their signatures can be said to be instigation/abetment in the context of offence, if any, punishable under Section 306 of IPC. Since, there is no element of abetment, case under Section 306 of IPC made against the petitioner is otherwise bound to fail.
24. Close scrutiny of aforesaid law taken into consideration clearly reveals that mere allegation of harassment of deceased Anil Kumar by the accused named in the FIR on account of his transfer and non-payment of salary may not be sufficient to conclude guilt, if any, ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 28 under Section 306 of IPC, rather to bring the accused in ambit of Section 306 of IPC, it is required to be established on record that deceased Anil Kumar committed suicide after being instigated and .
abetted by the accused, which is totally missing in the instant case.
25. In the instant case, accused named in the FIR, are/were fellow employees of the deceased and they were also not paid salary like deceased for the last three months, but only difference is/was that accused named herein are/were holding some senior/managerial positions, whereas, deceased was a worker.
26. As has been observed hereinabove, final decision, if any, with regard to hike in salary or payment thereof, is/was to be taken by the management and as such, accused named in the FIR cannot be held liable for the same. Leaving everything aside, non-
payment of salary cannot be considered to be abetment or instigation, if any, on the part of the accused named in the FIR, who were also not paid salary like deceased. There is no specific evidence that at any point of time, accused named in the FIR, caused harassment or insult to the deceased, rather action, if any, taken by the accused named in the FIR was not qua the deceased only, rather against all the employees, who had gone on strike.
27. Contents of FIR and Final Report filed under Section 173 Cr.P.C, if are taken to be correct, on its face value do not prima facie constitute the offence against the accused. Neither FIR nor Final Report filed under Section 173 Cr.P.C, disclose offences, if ::: Downloaded on - 24/07/2022 23:07:52 :::CIS 29 any, punishable under Section 306 IPC against the accused named in the FIR. There is no sufficient evidence available on record to connect the accused named in the FIR for the offences alleged to .
have been committed by them.
28. Having scanned entire material adduced on record by the prosecution along with Final Report filed under Section 173 Cr.P.C, this Court has no hesitation to conclude that evidentiary material on record, if accepted, would not reasonably connect the petitioners with the crime and as such, no fruitful purpose would be served, in case, accused are put to protracted trial, which otherwise, is likely to fail on account of lack of evidence.
29. Having perused the material available on record, this Court finds that chances of conviction of accused named in the FIR, are very remote and bleak and as such, it may not be in the interest of justice to let accused named in the FIR face trial, which in any eventuality is likely to fail.
30. Consequently, in view of the above, present petition is allowed and impugned order dated 25.02.2021, passed by Additional Sessions Judge (1) District Una, H.P. in Sessions Trial No. 49/2019, titled State Vs. Harish Sharma and Ors., arising out of FIR No.154/2018, dated 25.05.2018, registered at Police Station Haroli, District Una, H.P. is quashed and set-aside and the petitioners-accused are discharged of the charges framed against them under Section 306 and 34 IPC. Interim order is vacated.
::: Downloaded on - 24/07/2022 23:07:52 :::CIS 30Accordingly, petition is disposed of alongwith pending applications, if any.
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(Sandeep Sharma)
Judge
7th July, 2022
(reena)
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