Gujarat High Court
Rajkumar vs State on 27 August, 2008
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
Print
CR.MA/2726/2008 20/ 25 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2726 of 2008
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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RAJKUMAR
MADHABHAI VEGDA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MS.
KRUTI M SHAH for petitioners
MR LB DABHI, ADDL. PUBLIC PROSECUTOR
for Respondent(s) : 1,
MR BHAVESH P TRIVEDI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 27/08/2008
ORAL
JUDGMENT
The facts of the case stated briefly are that the respondent No.2 ? first informant had lodged a complaint against the petitioners herein alleging commission of the offence punishable under Sections 306 and 114 of the Indian Penal Code, which came to be registered as a First Information Report vide Jetpur City Police Station I ? C.R. No.29/2008. It is quashment of this First Information Report which is sought for by way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (the Code).
Heard Ms.Kruti M. Shah, learned advocate for the petitioners, Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondent No.1 ? State of Gujarat and Mr.Bhavesh Trivedi, learned advocate for the respondent No.2 ? first informant.
Ms.Kruti Shah, learned advocate for the petitioners has submitted that the petitioners are absolutely innocent persons who have been falsely implicated at the instance of one Police Inspector who was nursing a grudge against the present petitioners and had many times threatened that he would file false case against them. It is submitted that a perusal of the First Information Report makes it amply clear that the main allegations are against the Sandesh Newspaper Agency, of which the deceased was an agent, however, strangely, no person of the Sandesh Newspaper Agency has been arraigned as an accused in the First Information Report wherein the petitioners and one Kishor Maru are the only persons who have been named as accused. It is further submitted that, looking to the suicide note in question, it is apparent that the deceased was under pressure from the Sandesh Newspaper Agency for clearance of cheques which had been dishonoured and the agents were not making payment, which had forced him to take the step of committing suicide. It is contended that though in the First Information Report, there is also a reference that the petitioners were threatening to kill him and since then he was living under tension, there is no allegation to the effect that the petitioners herein had compelled him to commit suicide. It is alleged that though the main reason for committing suicide is attributed to the Sandesh Newspaper Agency, the police have deliberately not arraigned any person connected with the Sandesh Newspaper Agency as accused which bears out the malafide intention on part of the police authorities.
It is submitted that the allegation in the First Information Report is regarding abetment to commit suicide, however, the general allegations made in the First Information Report are not sufficient to attribute the intention of abetment to the petitioners. Mens rea which is an essential ingredient for the offence of abetment of suicide is completely absent in the present case. It is pointed out that the only allegation against the petitioners is that they were threatening to kill the deceased and his family members, however, despite the aforesaid position, no complaint has been lodged by the deceased before any authority, which clearly shows that the entire story is a bogus and concocted one. It is further submitted that the incident in question had occurred at about 3.00 p.m. on 25th February, 2008, whereas the First Information Report has been lodged on 26th February, 2008 at about 21.00 hours. Hence, the belated filing of the First Information Report by the complainant does not rule out the possibility of false implication of the petitioners. It is, accordingly, submitted that no offence as alleged can be stated to have been made out from the allegations made in the complaint, hence, the First Information Report in question is required to be quashed, in the interest of justice.
In support of her submissions, the learned advocate for the petitioners has placed reliance on the following decisions :
[a] The decision of the Supreme Court in the case of Sanju alias Sanjay Singh Sengar v. State of M.P., (2002)5 SCC 371.
[b] The decision of the Supreme Court in the case of Netai Dutta v. State of W.B., (2005)2 SCC 659.
[c] The decision of the Supreme Court in the case of Pawan Kumar Bhalotia v. State of W.B., (2005)2 SCC 661.
[d] The decision of the Supreme Court in the case of Swamy Prahaladdas v. State of M.P. And another, 1995 Supp (3) SCC
438. [e] The decision of the Supreme Court in the case of Randhir Singh and another v. State of Punjab, (2004)13 SCC 129.
[f] The decision of the Supreme Court in the case of Hans Raj v. State of Haryana, (2004)12 SCC 257.
[g] The decision of this Court in the case of A.K.Chaudhary v. State of Gujarat, 2005(3) GLH 444.
[h] The decision of this Court in the case of S.G.Munia v. State of Gujarat, 2002(3) GLH 417.
[i] The decision of this Court in the case of State of Gujarat v. Sunilkumar K. Jani, 1996(2) GLH 5.
[j] The decision of the Supreme Court in the case of Rameshbhai Ranchhodbhai v. State of Gujarat, 1989(2) GLH 240.
[k] The decision of this Court in the case of State of Gujarat v. Kalavatiben Liladhar, 2007(2) GLR 1272.
[l] The decision of this Court in the case of State of Gujarat v. Pradyuman Ramanlal Mehta, 1998(2) GLH 904.
[m] The decision of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha, (1982)1 SCC 561.
[n] The decision of the Supreme Court in the case of Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojira Angre, AIR 1988 SC 709.
On the other hand, Mr.Bhavesh Trivedi, learned advocate for the respondent No.2 ? first informant has vehemently opposed the application. It is submitted that, at the stage of lodging of the First Information Report, the facts are hazy and at such a stage, this Court should not intervene. It is submitted that the investigation is the domain of the investigating officer and the investigating agency must not be restrained from investigating the crime. It is submitted that looking to the First Information Report and the suicide note in question, it is apparent that the deceased was indebted to Sandesh Newspaper and had issued cheques for payment of such dues, hence, they were forcing for clearance of the cheques. Hence, the deceased was already under a tension in that regard, however, the petitioners knowing full well that the deceased was under great tension, were consistently harassing and threatening the deceased and as such, have abetted the commission of suicide by the deceased. It is submitted that the petitioners were aware of the weak financial position of the deceased and thereafter, when the harassment at the hands of the petitioners became unbearable, the deceased committed suicide. Therefore, there is a clear mens rea on the part of the petitioners.
The next submission advanced is that the deceased had named the petitioners in the suicide note, which is in the nature of a dying declaration, and that, at this stage, it must be believed to be true. The learned advocate has further submitted that the allegations made in the First Information Report clearly make out a case against the petitioners. The petitioners are alleged to have given threats to kill the deceased and his family members as well as to blackmail him with a view to coerce him into joining their association knowing full well that the deceased was under high stress. In the circumstances, the First Information Report which clearly discloses the offence requires investigation and cannot be quashed. It is submitted that the First Information Report is only for the purpose of initiation of criminal prosecution. That the suicide note in question only forms part of the material collected during investigation and this Court, at this stage, cannot interpret the suicide note and come to the conclusion that the offence under Section 306 of the Indian Penal Code is not made out. As regards the delay in lodging the First Information Report, it is submitted that, as the family members were mentally upset and were busy with the religious activities in connection with the funeral of the deceased, there was some delay in the lodging of the First Information Report. That the reasons for the delay are genuine. Besides, the names of the accused are disclosed in the suicide note itself, hence, it cannot be said that the petitioners have been falsely implicated. It is, accordingly, submitted that, at this stage, on the facts and circumstances of the case, there is no warrant for interference by this Court.
In support of his submissions, the learned advocate for the respondent No.2 ? first informant has placed reliance on the following decisions :
[a] The decision of the Supreme Court in the case of State of Karnataka v. Pastor P. Raju, (2006)6 SCC 728.
[b] The decision of the Supreme Court in the case of S.M.Datta v. State of Gujarat, AIR 2001 SC 3253.
[c] The decision of the Supreme Court in the case of M/s Jayant Vitamins Ltd. v. Chaitanyakumar and another, AIR 1992 SC 1930.
[d] The decision of the Supreme Court in the case of Som Mittal v. Government of Karnataka, 2008 (1) GLH 493.
[e] The decision of the Supreme Court in the case of Union of India v. Prakash P. Hinduja, 2003 ALL MR (Cri) 1578 [SC].
[f] The decision of the Supreme Court in the case of State of Karnataka v. M.Devendrappa and another, (2002)3 SCC 89.
[g] The decision of the Supreme Court in the case of Rajesh Bajaj v. State NCT of Delhi and others, (1999)3 SCC 259.
[h] The decision of the Supreme Court in the case of State of Kerala v. O.C.Kuttan and others, (1999)2 SCC 651.
[i] The decision of the Supreme Court in the case of Satvinder Kaur v. State (Govt. of NCT of Delhi) and another, (1999)8 SCC
728.
[j] The decision of the Supreme Court in the case of Dhanalakshmi v. R.Prasanna Kumar and others, 1990 (Supp) SCC 686.
[k] The decision of the Supreme Court in the case of Didigam Bikshapathi v. State of A.P., 2008 ALL MR (Cri) 870 [SC].
[l] The decision of the Supreme Court in the case of Divine Retreat Centre v. State of Kerala, rendered in Appeal (Cri) No.472 of 2008.
Mr.L.B.Dabhi, learned Additional Public Prosecutor has submitted that, at this stage, the involvement of the petitioners is disclosed. It is stated in the suicide note itself that the threats had been given and that the petitioners and the deceased did not have good relations. It is, accordingly, submitted that the investigation should be permitted to continue and that no case is made out for quashing the First Information Report in question.
This Court has considered the submissions advanced by the learned Advocates for the parties and has perused the record of the case, as produced before it.
With a view to properly appreciate the controversy involved in the present case, it would be necessary to refer to the contents of the First Information Report. The allegations made in the First Information Report are to the effect that the deceased Mulshankarbhai who was the elder brother of the first informant, was working as the sole agent of Sandesh daily and press representative at Jetpur since the last fifteen years. His work involved sale of Sandesh newspapers and getting subscriptions as well as covering newsworthy events in Jetpur City Taluka and preparing news reports and forwarding them. The deceased used to live with his family and work from his office viz. Gayatri News Agency and also used to carry on business of Girnar Transport.
On 25th February, 2008, when the first informant was at his residence at Jetalsar, at about 3 O'clock, in the afternoon, a person called Aziz Bodhani who had a shop by the name of Creative Offset next to the office of his brother Mulshankar, called him up on telephone and informed him that his elder brother Mulshanker had committed suicide in his office by hanging himself and that his dead body was hanging there. Thereafter, he immediately proceeded to his brother's office on a motorcycle and saw a crowd outside the office and at that time, Pravinbhai Goswami, who works at his brother's office, and Shaileshbhai and his sister in-law Gitaben and Sanadbhai Mehta, Aziz Bodhani, Deepak Joshi and both his brothers and Pareshbhai Sujitbhai were also present there. In the presence of all those persons, he raised the closed shutter of the office and opened it and saw that inside the office, in a glass cabin, his brother Mulshankar was hanging in a dead condition from a rope secured to a hook on the ceiling. Hence, he, Deepak Joshi and Azizbhai immediately took down the dead body and upon the arrival of the ambulance, locked the office and took the dead body of his brother in the ambulance to the Jetpur Government Hospital and there, the police officer along with his staff came and prepared the papers, got the Post mortem examination carried out and upon arrival of his parents and son of deceased Mulubhai, the dead body was taken for performing the last rites. Till then the body was kept at the hospital. In the meanwhile, the scene of offence panchnama was drawn and inside the office, on the table in the glass cabin, a note in the handwriting of his brother was found on the letter-pad of Gayatri News Agency wherein his brother had put his stamp and written the date 25.2.08 and had signed in his handwriting. That the first informant recognized the said signature and handwriting. They had read the note wherein it was written that the sub-agents here had got his cheques returned, consequently his cheques to Sandesh had also been returned, and Sandesh was pressurizing him to pass the same and were telling him to lodge criminal complaints and that, he was tired of telling the local agents and nobody had made payments in time, hence, he had to take this step. Now, they should close the newspaper business and if the subscriptions are received, they should be given to the paper. A large number of monthly bills of agents are unpaid and nobody pays on time, hence, he was fed up. Also Rajesh Madhabhai Vegda, Sanjay Vala and Kishore Maru of Jetpur were threatening to kill him, and from that day, he was under
tension.
The first informant has further stated that, on the basis of the note, he was of the belief that the deceased was under tension on account of the amount towards bills of Sandesh Newspapers remaining unpaid and because Rajesh Madhabhai Vegda, Sanjay Vala and Kishore Maru, residents of Jetpur, all three of them often used to threaten to kill his brother and his family members as well as to blackmail him. Moreover, these three persons and others had formed the Jetpur City and Taluka Newspapers Association, but as they were indulging in activities which were contrary to the duties of a press reporter and were blackmailing the common public, his brother and Dilipbhai Tajwani of Jai Hind, Sureshbhai Mehta of Gujarat Samachar, Jitubhai Moghwani of Jansatta, Nanubhai Oza of Atul Newspapers, had got together and issued a public notice. Since then, these three persons had harassed his brother and often used to give threats to kill him and his family members. Hence, on account of fear of these three persons, his brother had committed suicide by hanging himself.
In the background of the facts noted above and the contents of the First Information Report, what is required to be examined is, as to whether on the allegations made in the First Information Report, the offence under Section 306 of the Indian Penal Code is made out.
This Court, in the case of State of Gujarat v. Pradyuman Ramanlal Mehta, 1998[2] GLH 904, has interpreted the provisions of Section 306 IPC and has held as follows :
?S[4] Section 306 of the Indian Penal Code reads as under :
?S306. 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.??
[5] The meaning of the word ?Sabetment?? emerges from Section 107, which reads as under :
?S107.
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 a 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.
Illustration :
A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby 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 facilitates the commission thereof, is said to aid the doing of that act.??
[6] In the context of the facts of the present case, where defamatory articles are said to have been published in a daily of which the respondent No.2 was the editor, one has to examine whether the suicide said to have been committed by Narsinhbhai on reading of the articles published which were defamatory of him would amount to abetment by the respondents to enable Narsinhbhai to commit suicide. In the present case, ?Sdoing of a thing?? is the suicide and the question is, can it be said that by publishing the articles the respondents had abetted that doing of the thing i.e. Suicide? For that purpose, firstly one has to examine whether there was any instigation by the respondents to Narsinhbhai to commit suicide, i.e. ?Sto do that thing?? as per the language of Section 107 of the IPC. Furthermore, it has to be seen whether the respondents had engaged in any conspiracy for the doing of that thing namely for making Narsinhbhai commit suicide; and finally, whether the respondents or any of them intentionally aided, by any act or illegal omission, the commission of suicide by Narsinhbhai.
The word ?Sabetment?? occurring in Section 306 of the IPC is to be construed in the light of its meaning occurring in Section 107 of the IPC because when the same statute gives a meaning to the expression, then that expression should be given that meaning in the provisions appearing therein, unless a contrary intention is expressed or necessarily implied.
[7] Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. ... ... ... ?S Examining the facts of the present case in the light of the aforesaid statutory provisions, what is alleged against the present petitioners in the First Information Report is that the petitioners used to threaten the deceased that they would kill him and his family members, and had also threatened to blackmail him with a view to coerce him into joining their association. As is apparent from the contents of the First Information Report, the same is based upon the suicide note alleged to have been found in the cabin of the first informant's brother's office. From the contents of the suicide note as reproduced in the first information report, it is apparent that the main allegations are levelled against the sub-agents of Sandesh newspaper as well as Sandesh newspaper on the ground that the sub-agents were not making payments regularly and that the cheques issued by them had been dishonoured, and consequently, the cheques issued by the deceased to Sandesh newspaper had also been dishonoured. That Sandesh was pressurizing the deceased for making payments and was asking him to lodge criminal complaints in respect of dishonour of cheques and on account of the pressures associated with the aforesaid, the deceased was fed up and had accordingly taken the extreme step of committing suicide. Insofar as the petitioners are concerned the allegations are to the effect that they were threatening to kill him and from that day, the deceased was under tension. A plain reading of the suicide note as reproduced in the first information report, would clearly show that the deceased was under great stress and depressed. One plausible reason could be that as the newspaper agents were not making payments, the deceased was in dire straits insofar as his financial condition is concerned, and to add to his woes, Sandesh was also pressing for recovery of dues. Taking the allegations against the petitioners at their face value, the same could only have aggravated the mental condition of the deceased, nonetheless, it can in no manner be said that the suicide by the deceased was a direct result of the alleged acts of the petitioners.
The next point that requires consideration is as to whether on the aforesaid allegations, the petitioners can be said to have abetted the deceased in committing suicide. As held by this Court in the decision referred to hereinabove, abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. Considering the nature of the allegations levelled against the petitioners it is difficult to come to even a prima facie view that the alleged acts of the petitioners were enough to instigate the deceased to commit suicide. Besides as held by the Supreme Court in the case of Sanju v. State of M.P., (2002) 5 SCC 371, presence of mens rea is a necessary concomitant of instigation. On the facts of the present case, there is nothing in the first information report to indicate that the requisite mens rea is present on the part of the petitioners. The contents of the suicide note do not in any way make out the offence against the petitioners.
In the case of S.G.Munia & ors. v. State of Gujarat, 2002[3] GLH 417, this Court has held that, to constitute an offence under Section 306 of the Indian Penal Code, the most essential ingredient is that there must be prima facie offence to even remotely suggest that the accused persons intended the consequences of the act i.e. the death of the person. In the facts of the present case, even if the contents of the suicide note per se are accepted as true, without challenging the veracity of the same, the same does not involve the petitioners in the offence punishable under Section 306 of the IPC.
It has been contended on behalf of the respondent No.2 - first informant that the inherent power should not be exercised to stifle the legitimate prosecution, and that, the High Court being the highest Court of a State, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Reliance is placed upon the decision of the Supreme Court in the case of Didigam Bikshapathi and Another v. State of A. P. 2002 ALL MR (Cri) 870 (S.C.). There can be no quarrel with the proposition laid down in the aforesaid decision. However, the said decision does not lay down any absolute proposition that in no case the first information report can be quashed. The Court has held that the scope of exercise of power under Section 482 of the Code, and the categories of cases where the High Court may exercise its powers under it relating to cognizable offences to prevent the abuse of process of any court or otherwise to secure the ends of justice have been set out by the Supreme Court in the case of State of Haryana v. Bhajanlal (1992 Supp (1) SCC 335). The illustrative categories indicated are as follows:
?S1.
Where the allegations made in the First Information Report or 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 a case against the accused.
2.
Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.??
The facts of the present case are therefore, required to be examined in the light of the aforesaid principles laid down by the Apex Court to ascertain as to whether the same falls within the ambit of any of the categories enumerated therein. Looking to the allegations made in the first information report even if they are taken at their face value and accepted in their entirety, in the opinion of this Court they do not prima facie constitute any offence under section 306 IPC, as alleged nor make out a case against the petitioners-accused.
On behalf of the respondent No.2 ? First Informant, reliance is also placed upon the decision of the Supreme Court in the case of State of Karnataka v. Pastor P. Raju, (2006)6 SCC 728, wherein it has been held as follows :
?SHence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be inquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction.??
Reliance is also placed upon a decision of the Supreme Court in the case of State of Karnataka v. M.Devendrappa and another, (2002)3 SCC 89 for the proposition that, when an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegation of malafides against the informant is of no consequence and cannot by itself be the basis for quashing the proceedings.
Reliance is also placed upon a decision of the Apex Court in the case of State of Kerala v. O.C. Kuttan, (1999)2 SCC 651, for the proposition that that it is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U.P. v. O.P.Sharma, a three-Judge Bench of this Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Article 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three-Judge Bench of this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole.
Reliance is also placed upon a decision of the Supreme Court in the case of Dhanalakshmi v. R.Prasanna Kumar and others, 1990 (Supp) SCC 686, for the proposition that, when there are specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of, it is for the complainant to substantiate the allegations by evidence at a later stage. In the absence of circumstances to hold prima facie that the complainant is frivolous when the complaint does disclose the commission of an offence, there is no justification for the High Court to interfere under Section 482 of the Cr.P.C.
There can be no quarrel with the propositions of law laid down in the decisions cited hereinabove, on which strong reliance has been placed on behalf of the respondent No.2. However, the basic principles which are required to be kept in mind while exercising powers under section 482 of the Code are as laid down in the case of Bhajanlal (supra). The present case squarely falls within the first illustrative category indicated therein, hence the decisions relied upon by the respondent No.2 do not carry his case any further.
Another aspect that requires consideration is that despite the fact that in the suicide note the main allegations are levelled against the agents of Sandesh newspaper as well as Sandesh newpaper, they have not been arraigned as accused; whereas for reasons best known to the first informant and the concerned police officer, it is only the petitioners against whom there is only a passing reference in the suicide note, who have been arraigned as the accused along with one Kishore Maru. This circumstance lends some credence to the allegations of malafide voiced by the petitioners. However, considering the fact that the concerned police officers against whom allegations of malafide have been made have not been impleaded as respondents in the present application, the Court has not gone into merits of the said allegations.
In view of the above discussion, this Court is of the view that the prosecution initiated against the petitioners would only result in sheer harassment to the petitioners without any fruitful result. In the circumstances, this is a fit case for exercise of powers under section 482 of the Code to prevent the abuse of process of Court.
In the result the application succeeds and is accordingly allowed. The first information report registered vide Jetpur Police Station I C.R. No.29/2008 is hereby quashed qua the present petitioners. Rule is made absolute.
( HARSHA DEVANI, J. ) parmar* Top