Allahabad High Court
Rupendra Yadav vs State Of U.P.& Anothers. on 10 March, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved 1. Criminal Miscellaneous Case No. 3072 of 2007 (U/s482Cr.P.C.) 1. Rupendra Yadav, Aged about 33 years,son of Sri R.Yadav, Customer Service Manager, Hindustan Unilever Limited, 165-166 Backbay Reclamation,Mumbai. .....Petitioner Vs. 1. State of Uttar Pradesh, through Principal Secretary Homes, Government of Uttar Pradesh, Civil Secretariat,Lucknow, 2. Mr. Rajneesh Jain, son of Sri Devendra Kumar Jain, Resident of 60/52-B, Rasoolpur, Mirapur,Police Station -Kareli, District Allahabad. ...............Respondents AND 2. Criminal Miscellaneous Case No. 3231 of 2007 (U/482 Cr.P.C.) 1. M. Venkatesh alias Venky, aged about 49 years, son of Sri K. Murthy, Business Head, Hindustan Tines, (Circulation), Cannaught Place, Delhi. ................. Petitioner Vs. 1. State of Uttar Pradesh, 2. Mr. Rajneesh Jain, son of Sri Devendra Kumar Jain, Resident of 60/52-B, Rasoolpur, Mirapur, Police Station -Kareli, District Allahabad. ....................Respondents AND 3. Criminal Miscellaneous Case No. 3232 of 2007 (U/482 Cr.P.C.) 1. Nipun Aneja, aged about 28 years, son of Sri Shetty Aneja,Trade Category Manager (Beverages),Hindustan Unilver Limited,165/166 Backbay reclamation, Mumbai, 2. Z.I. Alvi, aged about 31 years, son of Mr. W.I.Alvi, Flat No. 201, Windsor Court Apartment-3, Dalibagh, Lucknow. 3. Manish Kumar Sharma, aged about 37 years, son of Dr. R.S. Sharma, Trade Marketing Executive, Hindustan Unilever Limited, 165/166 Backbay Reclamation, Mumbai ..............Petitioners Vs. 1. State of Uttar Pradesh, 2. Mr. Rajneesh Jain, son of Sri Devendra Kumar Jain, Resident of 60/52-B, Rasoolpur, Mirapur, Police Station -Kareli, District Allahabad. ....................Respondents AND 4. Criminal Miscellaneous Case No. 3233 of 2007 (U/482 Cr.P.C.) 1. Kallol Chakraborty, Director, H.R. and IR,Federal Moghul Geopze (India) Ltd.A 23/3, Mohan Co op Industrial Estate,Mathura Road, New Delhi 110 004 ..........Petitioner Vs. 1. State of Uttar Pradesh, through Principal Secretary Homes, Government of Uttar Pradesh, Civil Secretariat, Lucknow, 2. Mr. Rajneesh Jain, son of Sri Devendra Kumar Jain, Resident of 60/52-B, Rasoolpur, Mirapur, Police Station -Kareli, District Allahabad. .........Respondents Hon'ble Anil Kumar Srivastava-II,J.
1. Since all the above petitions have arisen out of a common order of cognizance passed by the learned Chief Judicial Magistrate, Lucknow on 31.8.2007, they were heard together and are being disposed of by this common judgment.
2. Heard Shri Siddharth Ludhara, learned Senior Advocate duly assisted by Shri Nandit Srivastava and Ms. Supriya Janeza, learned counsel for the petitioners, learned AGA for opposite party no. 1- State and perused the record.
3. Opposite party no. 2 was not present at the time of arguments and no arguments have been placed on his behalf.
4. These petitions have been filed with the prayer to quash the proceedings of Criminal Case No. 11428 of 2007,State Vs. Venky Venkatesh and five others, arising out of case crime no. 321 of 2006 under section 306 IPC, P.S. Naka Hindola, District Lucknow and also the impugned charge-sheet dated 31.8.2007 as well as the cognizance order dated 31.8.2007.
5. A First Information Report ( In short ''FIR') was lodged by one Rajneesh Jain on 04.11.2006, which was registered at case crime no. 321 of 2006 under section 306 IPC, P.S. Naka Hindola, District Lucknow. It is stated that complainant is the brother of Rajiv Jain, who was working in erstwhile Hindustan Lever Ltd. for the last about 23 years. He was a disciplined employee having no adverse remarks in his service career. His retirement age was 60 years , but he was disturbed due to behaviour of the officers. Complainant Rajneesh Jain has lodged FIR on the basis of discussions made with the wife of the deceased. It is further stated that the deceased told his wife that the company is implementing the Voluntary Retirement Scheme (In short VRS scheme) wherein he was compelled to accept the same. VRS scheme is in the form of compulsory retirement scheme. Deceased had told that VRS scheme has been implemented and will be enforced on 20.6.2006. He has been compelled and pressurized to accept the same. S/Shri M. Venkatesh alias Venky, Regional Manager, North Region, HLL, Kallol Chakraborty, Regional Personal Manager, Northern India HLL, Rupendra Yadav, Customer Service, Manager HUL, Nipun Aneja Area Manager Hll, Z.I. Alvi AE Activation Executive and Manish Kumar Sharma, AE Activation Executive are prominent amongst them. In the month of October, 2006, deceased was more pressurized.
6. Deceased came to Lucknow from Varanasi informing that a meeting of the company is to be held on 2nd and 3rd November, 2006 at Hotel Amber and Deep Palace, Lucknow . It is further informed that the deceased came to Lucknow to satisfy his officers and to find out a final solution. He came to Lucknow on 1.11.2006 alongwith his colleagues and stayed at Hotel Ambar. He had a telephonic talk at his house on 2.11.2006. On 3.11.2006, again deceased was tortured and pressurized unnecessarily. Thereafter some letter was handed over by the officers to him. Deceased telephonically informed the whole episode to his family members on 3.11.2006. Thereafter he came back to Hotel after the meeting. Thereafter his dead body was found in the hotel room.
7. FIR was lodged on the basis of written report on 4.11.2006 at police station Naka Hindola under section 306 IPC. Inquest proceedings were conducted. Postmortem of the body of deceased was conducted. Statements of the witnesses were recorded by the Investigating Officer.
8. Arrest of the petitioners was stayed by the Division of this Court in Writ petition No. 7127 of 2006 (M/B), Rupendra Yadav and others Vs. State of U.P. and others vide order dated 14.11.2006.
9. After conclusion of the investigation, charge-sheet was submitted against the petitioners on 15.7.2007 wherein the cognizance was taken by the learned Magistrate on 31.8.2007, which is under challenge before this Court.
10. Learned Senior Advocate appearing for the petitioners submits that the petitioners have been falsely implicated in this case. They have no concern with the alleged incident. It is further submitted that on facts involvement of the petitioners for commission of an offence under section 306 IPC is not made out. It is further submitted that there is neither any dying declaration nor any suicide note of the deceased. There is no evidence on record collected by the investigating officer to show that any telephonic conversation was made by the deceased at his home at Varanasi. It is further submitted that the invoice of the hotel shows that there was no charges on account of the telephone calls in the bill.
11. Accused M.Venkatesh alias Venky, Rupendra Yadav and Kallol Chakraborty were not even present at Lucknow on the date of incident. It is further submitted that voluntary retirement scheme can be implemented by the company, which is a voluntary action on behalf of its employees. A list of employees, who were voluntarily retired, is on record wherein name of the deceased does not find place. It is further submitted that the matter of voluntary retirement is a matter between employer and employee. Even if the employee sought retirement voluntarily, it could not be a ground for abetment to commit suicide. Even if the employee is compulsorily retired, it is service matter or a contractual matter between the employer and employee, which could not be treated as an abetment for commitment of suicide.
12. Learned counsel has taken the court to statements of wife of the deceased namely Smt. Sunita Jain, brothers of the deceased Rajneesh Jain as well as Gagan Jain and mother Smt. Ratan Mala Jain and submitted that statements of these witnesses no where make out a prima facie case even for abetment of the suicide. Learned counsel further submits that one Sudhir Kumar Ojha, who was also an employee of the company, in his statement stated that, in the meeting, most of the employees of the sales department were asked to do the job of the lower rank, for which they felt offended. Deceased Rajiv Jain also felt offended. Thereafter deceased went to the hotel and committed suicide.
13. Learned counsel further submits that statements of the witnesses are not sufficient for holding that there was any abetment on behalf of the accused or by the accused for committing the suicide by the deceased. He further summits that no case for abetment to commit suicide is made out against the accused. Attention was also drawn towards the statement of one Jayant Kumar Ghatak, an employee of the company.
14. Learned counsel has placed reliance upon Pepsi Foods Ltd. And another VS. Special Judicial Magistrate and other, (1985) 5 SCC 749, Joseph Salvaraja Vs. State of Gujrat and others , (2011) 7 SCC 59, Guruchar Singh Vs. State of Punjab (delivered by Hon'ble Apex Court on 2.12.2016 in Criminal Appeal No. 1135 of 2006), Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and others, (2015) 12 SCC 420 and Sunil Bharti Mittal Vs. Central Bureau of Investigation , (2015) 2 SCC (Cri) 687 and submits that in the proceedings under section 482 Cr.P.C., the High Court has the power to quash the proceedings. It is further submitted that though no formal or speaking or reasoned order are required at the stage of section 190/204 Cr.P.C., there must be some indications of the application of mind by the Magistrate to the facts constituting commission of the offence.
15. Learned counsel further submits that there is no evidence on record collected by the investigating officer to bring out an offence under section 306 IPC specifically abetment as contemplated by section 107 IPC on the part of the accused wherein the intention to bring about the suicide of the person concerned as the result of that abetment. It is further submitted that the intention of the accused to aid or to instigate or to abet the deceased to commit suicide is must for offence under section 306 IPC .
16. Learned counsel for the petitioners has further placed reliance upon the following case laws:-
i. Madan Mohan Singh Vs. State of Gujrat and another (2010) 8 SCC 628.
ii. Kishore Dattatraya Shinde Vs. State of Mahrashtra and others, 2016 (1) Crimes 273 (Bom).
iii. State of Kerala and others Vs. S. Unnikrishnan Nair and others (2015) 9 SCC 639.
iv. State of West Bengal Vs. Orilal Jaiswal and another (1994) 1 SCC 73.
v. Kishori Lal Vs. State of M.P. (2007) 10 SCC 797.
vi. Amalendu Pal alias Jhantu Vs. State of West Bengal (2010) 1 SCC 707.
vii. A.K.Chaudhary and another Vs. State of Gujrat and others (2006) Cri LJ 726 (Gujrat).
17. It is submitted that prosecution has nowhere brought on record the evidence that the petitioners have abeted commission of suicide to the deceased. It is further submitted that even in the statements of witnesses i.e. Sudhir Kumar Ojha and Jayant Kumar Ghatak, names of M.Venkatesh alias Venky, Manish Kumar Sharma and Nipun Aneja have not been stated by the witnesses. It is further stated that there is no evidence on record so as to prove the necessary ingredients of abetment.
18. Powers of the High Court under section 482 Cr.P.C. have been categorically defined in catena of judgments of the Hon'ble Apex Court .
19. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preempt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588, Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74 and Manoj Kumar Sharma and Ors. vs. State of Chhattisgarh and Another (2016) 9 SCC 1.
In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, Hon'ble the Apex Court has further laid down, the guidelines for exercise of the power by the High Court under Section 482 Cr.P.C. It has been held that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.
However, in this matter, after investigation, Police has found a prima facie case against accused and submitted charge-sheet in the Court below. After investigation the police has found a prima facie case of commission of a cognizable offence by accused which should have been tried in a Court of Law. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground has been made out which may justify interference by this Court under Section 482 Cr.P.C.
In Manoj Kumar Sharma and Others (Supra) Hon'ble the Apex Court has relied upon the law laid down in State of Haryana v. Bhajan Lal (Supra) wherein it was held that "though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formula or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice."
20. Further the case laws as referred above by the learned counsel for the petitioners are concerned, case of Papsi Foods Ltd. (supra) was a case which arose on the basis of a complaint.
21. In State of Haryana & others Vs. Bhajanlal & others 1992 Supp. (1) SCC 335, the Hon'ble Apex Court has laid down the guidelines for exercise of powers under section 482 Cr.P.C. which are as under :-
"(1) 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 FIR 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 FIR 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 institu- tion 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."
22. Mehmood Ul Rehman's case (supra) was also a case arising out of a complaint. It was held in paras 20, 21 and 22, which are reproduced here below:-
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter.
21. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that . "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected.
22. The steps taken by the Magistrate under Section 190(1) (a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one's dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.
23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate." (emphasis supplied)
23. In Sunil Bharti Mittal's case (supra) the Hon'ble Apex Court has held in paras 47, 48 and 49 which are reproduced herein below:-
"47. We have already mentioned above that even if the CBI did not implicate the appellants, if there was/is sufficient material on record to proceed against these persons as well, the Special Judge is duly empowered to take cognizance against these persons as well. Under Section 190 of the Code, any Magistrate of first class (and in those cases where Magistrate of the second class is specially empowered to do so) may take cognizance of any offence under the following three eventualities:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
This Section which is the starting section of Chapter XIV is subject to the provisions of the said Chapter. The expression "taking cognizance" has not been defined in the Code. However, when the Magistrate applies his mind for proceeding under Sections 200-203 of the Code, he is said to have taken cognizance of an offence. This legal position is explained by this Court in S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd & Ors 36 (2008) 2 SCC 492: (2008) 1 SCC (Cri) 471 in the following words: (SCC p. 499, para 19).
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of: and when used with reference to a court or a Judge, it connoted "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence...."
48. Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards." (emphasis supplied)
24. In Joseph Salvaraja's case (supra) the Hon'ble Apex Court has held in para 16, which is reproduced here below:-
"16. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant's FIR, charge sheet, documents etc. or not."
25. In the background of the aforesaid legal propositions regarding powers of the High Court under section 482 Cr.P.C. now it is to be seen as to whether the cognizance taken by the learned Magistrate is bad in law or Magistrate has rightly taken the cognizance in the matter?.
26. According to the prosecution version, admittedly deceased was working in the Hindustan Lever Limited for the last about 23 years. It was also admitted that some scheme for voluntary retirement was floated. It is also admitted that about 162 employees had offered to avail the facility of the aforesaid scheme. It is also admitted that a meeting was held at Lucknow wherein the deceased participated. It is also admitted that the deceased did not avail the facility of VRS scheme and he was placed for a merchandising job which was an assignment on temporary basis. Letter was also handed over to him. It is also admitted that the deceased had come to Lucknow only with the purpose to attend the meeting wherein after the meeting he had been found dead in the hotel room.
27. Now, it is to be seen as to whether the necessary ingredients of sections 107,109 and 306 IPC have been made out or not?.
Sections 107 IPC reads as under:-
"107. Abetment of a thing.--A person abets the doing of a thing, who--
(First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; 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. 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, 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 facilitate the commission thereof, is said to aid the doing of that act."
Section 109 IPC reads as under:-
"109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.
(c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder. CLASSIFICATION OF OFFENCE Punishment--Same as for offence abetted--According as offence abetted is cognizable or non-cognizable--According as offence abetted is bailable or non-bailable--Triable by court by which offence abetted is triable--Non-compoundable."
Section 306 IPC reads as under:-
"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."
28. At the very outset, in the First Information Report, complainant is the brother of the deceased. In the statement of Sudhir Kumar Ojha who was also present in the meeting, it is stated that on 3.11.2006 in the meeting Nipun Aneja, Z.I. Alvi, Manish Kumar Sharma coupled with Vijai Dev Sharma and M.A Khan etc. have addressed them that an offer in the merchandising capacity was given and the company started the process of converting the VRS into CRS. Deceased started weeping in the meeting. Thereafter he went to his room and committed suicide. Jayant Kumar Ghatak, another employee, who was also present in the meeting, has stated that in the meeting Nipun Aneja, Manish Kumar Sharma and Z.I. Alvi have delivered the letter to work in Merchandising as Salesman. The deceased was also humiliated. It is further stated that earlier Kallol Chakraborty and Rupendra Yadav had come to Lucknow about a year back, who have mentally tortured and humiliated the deceased as well as the other employees including Jayant Kumar Ghatak. Mrs. Sunita Jain wife of the deceased also stated that the deceased used to tell her that higher officers of the company are pressurizing him to accept the VRS Scheme. In this connection, he had come to Lucknow on 3.11.2006 to attend the meeting, although she has stated the names of M.Venkates alias Venky and other accused that they were pressurizing or torturing her husband, due to which he committed suicide.
29. Learned counsel for the petitioners has also placed reliance upon Madan Mohan Singh (supra) wherein it was held that " it is trite law now that where there is some material alleged in the FIR, then such FIR and the ensuing proceedings should not be quashed under section 482 Cr.P.C.". He has placed reliance upon para 10, 11 and 12 of Madan Mohan Singh's case (Supra), which are reproduced here below:-
"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306, IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.
11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.
12. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note."
It was a case of the suicide note wherein the deceased was driver in Ahmedabad Bharat Sanchar Nigam Ltd. in the Microwave Project department. Prior to death he had left a suicide note. His wife levelled allegations against the head of the department DET project.
Suicide note states that the suicide was committed due to the functional style of M.M.Singh.
30. The facts of the aforesaid case are entirely different to the facts of the present case.
31. In the present case, employees Sudhir Kumar Ojha and Jayant Kumar Ghatak have specifically stated the humiliation which was faced by the deceased due to the action of Z.I.Alvi, Nipun Aneja and Manish Kumar Sharma coupled with humiliation which was continuously being faced by the deceased due to the behavior of Rupendra Yadav and Kallol Chakaraborty. There is direct nexus between the deliberations took place in the meeting and the suicide committed by the deceased just thereafter.
32. In Kishore Dattatraya Shinde's case (Supra) the facts were different wherein the deceased Dilip Magar was working as Junior Technician in the Maharashtra State Electricity Distribution Company Limited, wherein the applicant was Assistant Engineer. Deceased Dilip Magar and one S.B. Bhamgar were directed to go to Phulgaon to shut down a line supply of a high tension wire to conduct certain tests of a consumer . It was decided between Dilip and said Bhamgar that Dilip would go to take the line permit to shut down the line supply and Bhamgar would wait at the site for Dilip's call to proceed. After getting go-ahead instructions from Dilip, Bhamgar climbed the electric pole to open the connection but received massive electric shock, who subsequently died. Dilip was in great metal shock and committed suicide.
Facts of the present case are entirely different. In the said case depression was caused wherein the deceased committed suicide while the fact of the present case narrates different story .
33. The case of Unnikrishnan Nair (Supra) is on different footing. It was case of custodial death, wherein even the Chief Judicial Magistrate was roped in the suicide note. It was held in para 17 that the suicide note really does not state about any continuous conduct of harassment and , in any case, the facts and circumstances are quite different.
34. Netai Dutt Vs. State of W.B. (2005) 2 SCC 659 was also a case of suicide note wherein the complaint was lodged with the police after a period of about two months. In the present case, the first information report was lodged on 4.11.2006 i.e. the next day of the incident, wherein the accused have been named by the complainant. In the said case also, it was held that except for suicide note wherein the name of the appellant is referred, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide.
35. Orilal Jaiswal's case (Supra) is a case wherein after leading the evidence, the trial court has recorded a finding of guilt in a case under section 498A coupled with 306 IPC.
36. Amalendu Pal Alias Jhantu's case (Supra) is also a case of post conviction.
37. In Para 14 of Amalendu Pal alias Jhantu's case (Supra), it was held that "A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC."
Para-14 is reproduced as under:-
"14. The expression `abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent-State, however, clearly stated before us that it would be a case where clause `thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC."
38. Intention is to be gathered from the attending circumstances. A nexus is to be judged in the circumstances wherein the deceased was humiliated and rather compelled to take the extreme step.
39. Coming to the factual matrix of the present case, statement of Sunita Jain wife of the deceased attains relevance and importance with reference to the statements of Sudhir Kumar Ojha and Jayant Kumar Ghatak. Sudhir Kumar Ojha and Jayant Kumar Ghatak have specifically stated that the deceased was humiliated in the meeting. He was given a letter to do the job on a lower cadre post in merchandising. Deceased was working in the establishment for the last about 23 years. Without any inquiry or leveling any charge against him, he was asked to work on a lower post, although it is true that it is a matter between the employer and employee, which is contractual obligation.
40. Learned counsel for the petitioners has contended that the contractual relationship between the employer and employee in the company was such that the employer could have asked the employees to work on any post. It is further contended that in the list of employees who had opted the VRS scheme, name of the deceased was not there. Deceased had not opted for voluntary retirement. This aspect attains importance.
41. I look into the matter in a different angle. It is alleged that the deceased used to tell his wife that VRS Scheme is being implemented in the company. Officers are pressurizing him to accept the scheme. If it is not so, then the consequences would be otherwise. In the same transaction, the deceased attended a meeting at Lucknow wherein he was humiliated by three of the officers- Z.I. ALvi, Nipun Aneja and Manish Kumar Sharma. At this stage, it is also relevant that Rupendra Yadav and Kallol Chakraborty had also pressurized and humiliated the deceased about a year back for accepting the scheme, although they were not present in the meeting.
42. Statements of Sudhir Kumar Ojha and Jayant Kumar Ghatak are most relevant on the issue.
43. Sudhir Kumar Ojha has stated that he was also working as Salesman in Hindustan Lever Limited Company and was posted at Sultanpur while the deceased was posted at Varanasi. Both of them came to Lucknow on 1.11.2006 and stayed in Room No. 244 of Ambar Hotel. They reached in Deep Palace Hotel on 3.11.2006 at about 9.30 am to participate in the meeting. Nipun Aneja, Z.I. Alvi, Vijay Dev Sharma, Manish Sharma and M.A. Khan etc. addressed them. Profile of the Salesman was changed to lower grade which was against the their dignity. Rajiv Jain started weeping in the meeting itself. In this manner, Company started conversion of VRS into CRS. Jayant Kumar Ghatak is also one of the participants of the meeting, who has specifically stated that on 3.11.2006 a meeting was called to harass and demote the employees of the company. He has further stated that the employees/salesman of the company, who did not accept VRS, had been called in the meeting. Nipun Aneja, Manish Sharma and Z.I. Alvi called the Salesman, who have not opted the VRS Scheme and scolded them and handed over transfer letter for merchandising post which was a post below to Salesman. They were also threatened that if they do not accept the transfer letter, their lives would be ruined and they would be ousted from the services. In continuance of the same, about a year back, Kallol Chakraborty and Rupendra Yadav came to Lucknow and mentally tortured the employees including the deceased and threatened that one who does not accept the VRS Scheme, would be thrown out from service. Letter for transfer from Salesman to merchandising was issued under the signatures of M. Venkatesh alias Venky, who had also mentally tortured the employees for accepting the VRS scheme. It is further stated by Jayant Kumar Ghatak that Rajiv Jain was separately called and was handed over the letter for merchandising. He was badly humiliated due to which he started crying in the meeting hall itself. Thereafter, he went in a room and committed suicide. There is direct nexus between the suicide committed by the deceased and the act of the accused. It is continuing offence which ultimately culminated on 3.11.2006.
44. In the case of Madan Mohan Singh (Supra), it was held that "it is trite law now that where there is some material alleged in the FIR, there is such FIR and the ensuing proceedings should not be quashed under section 482 Cr.P.C."
45. In the light of this law, material on record is to be looked into. It was also held in the aforesaid case that the intention of the accused to aid or to instigate or to abet the deceased to commit suicide is must for this particular offence under section 306 IPC.
46. In the present case, the deceased was so much humiliated publicly that, just after the meeting, he went to his room and committed suicide. There is a direct link between the meeting and the commission of suicide. Deceased was being continuously humiliated and tortured to either accept the VRS or to accept the letter of working in the merchandising department, which is in lower grade than the grade wherein the deceased was functioning. It is the cause which instigated the deceased to take the extreme step. The accused Nipun Aneja, Z.I Alvi and Manish Kumar Sharma are the officers of the employer-company, who were present in the meeting, had every reason to humiliate the deceased to an extent that he should accept their dictates, otherwise the deceased would have not taken the extreme step. In this reference, statement of wife of the deceased also attains importance wherein she has stated that the deceased was under continuous mental pressure and depression due to behavior of the accused. Specific allegations have been levelled by Jayant Kumar Ghatak and Sunil Kumar Ojha against the accused petitioners Nipun Aneja, Z.I.Alvi and Manish Kumar Sharma.
47. Now we can look into the case of Kallol Chakraborty and Rupendra Yadav. It is stated that they are also senior officers of the Company. About one year from the date of incident, they had threated, humiliated and tortured the deceased either to accept the VRS or he would be sent to a lower grade. Period of one year passed in between the action of these two accused and the commission of suicide by the deceased.
48. Jayant Kumar Ghatak has specifically stated that accused Kallol Chakraborty and Rupendra Yadav had come to Lucknow about a year back to launch the VRS scheme. They had mentally tortured the employees of the company to accept the VRS. Apart from this statement, statement of Sunita Jain also reveals that the officers, who were present in the meeting, had so much pressurized, humiliated and tortured the deceased, due to which, deceased had taken the extreme step. Rajneesh Jain had given his statement on the basis of information given to him by the wife of the deceased. Likewise Gagan Jain and another brother of the deceased had also stated on the basis of information provided to them by the wife of the deceased. There is no direct link between the action taken by the accused Kallol Chakraborty and Rupendra Yadav and the act of the deceased. Accused Kallol Chakraborty and Rupendra Yadav had came to Lucknow about a year back to launch the scheme of VRS. Thereafter on the date of incident, they were not present in the meeting, hence no direct role can be attributed to these two persons. Thus, I find force in the submissions of the aforesaid petitioners that no case is made out against them.
49. Case of M.Venkatesh alias Venky, Kallol Chakraborty and Rupendra Yadav stands on different footing. It has been held in Madan Mohan's case (Supra) that in order to bring out an offence under section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under section 306 IPC.
50. The abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.
51. In M. Mohan (supra), while dealing with the abatement, the Court has observed thus: (SCC p. 638, para 44-45) "44. 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.
45. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
As far as Praveen Pradhan Vs. State of Uttaranchal (2012) 9 SCC 734, is concerned, Mr. Rao, has emphatically relied on it for the purpose that the Court had declined to quash the F.I.R. as there was a suicide note. Mr. Rao has drawn out attention to paragraph 10 of the judgment, wherein the suicide note has been reproduced. The Court in the said case has referred to certain authorities with regard to Section 107 I.P.C. and opined as under: (SCC p. 741, paras 18-19) "18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so , while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption refered to under Section 288 CrPC.
19. Thus, the case is required to be considered in the light of aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon non-fulfillment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in the factory, vis-à-vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, "had there been any other person in his place, he would have certainly committed suicide" is what makes the present case distinct from the aforementioned cases. Considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this court as regards the impugned judgment and order of the High Court."
52. Case of petitioner M. Venkatesh alias Venky is entirely on different footing. He was not present in the meeting held on 3.11.2006. It is not a case that he was also present in the meeting and humiliated and tortured the deceased. Only allegation against him is that the letter of transfer in merchandising department was signed by him. Mere signing of a letter cannot be said to be an instigation and abetment to commit the suicide. He had signed the letter sitting in his office. He neither compelled the deceased to accept the letter nor humiliated him. Hence, I do not find any substance in the submission that he was also involved in abeting the suicide.
53. It is submitted that the deceased had not made any telephonic call from the hotel to his residence. A bill of the hotel is shown during the course of argument wherein no call charges were claimed but this itself could not be sufficient to hold that no telephonic conversation was made by the deceased to his wife at Varanasi. There may be so many means to call his wife by deceased either through mobile or through any other PCO which is a matter to be looked into during trial.
54. Another argument was made that the investigation is defective. Scheme of VRS is a matter between the employer and employee which has no concern with the incident in question.
55. Definitely, relations of employer and employee are governed by the statute. A scheme can be formulated by the employer, but at the same time, when specific allegations of humiliation, torture and public humiliation are levelled against the accused which resulted in taking the extreme step by the deceased, then relationship loses its importance. Further such behavior is to be seen alongwith the evidence of witnesses by the trial court during trial.
56. Learned counsel for the petitioners also submits that main cause for lodging the FIR is that in the FIR itself, it is mentioned that even after the death of the deceased, company officials did not come to condone the death. It is further submitted that the claims of the deceased have also been cleared by the company. I do not find any force in the submission. FIR itself, prima facie, makes out a case against accused Nipun Aneja, Z.I. Alvi and Manish Kumar Sharma. Further clearance of the claim of the deceased could not absolve petitioners from their criminal liabilities.
57. Learned Magistrate has passed the impugned order after perusing the case diary, as is evident from the impugned order taking cognizance dated 31.8.2007. Cognizance was taken on the basis of the charge-sheet submitted by the police. Learned Magistrate was not expected or required under law to pass a detailed and reasoned order at the time of taking the cognizance. Impugned order shows that the learned Magistrate has applied his judicial mind at the time of taking cognizance. The impugned order cannot be said to be a mechanical order.
58. Considering all the facts and circumstances of the case, I am of the view that no case is made out against the accused petitioners Rupendra Yadav, M.Venkatesh alias Venky and Kallol Chakraborty.
59. Accordingly, Crl. Misc. Case Nos. 3072 of 2007, 3231 of 2007 and 3233 of 2007 (U/s 482 Cr.P.C.) are allowed. Charge-sheet filed against accused petitioners Rupendra Yadav, M.Venkatesh alias Venky and Kallol Chakraborty is quashed. The impugned cognizance order dated 31.8.2007 passed by the Chief Judicial Magistrate, Lucknow insofar as it relates to accused petitioners Rupendra Yadav, M.Venkatesh alias Venky and Kallol Chakraborty is also quashed. Crl. Misc. Case No. 3232 of 2007 (U/s 482) is dismissed.
60. However, it is provided that if the petitioners- Nipun Aneja, Z.I. Alvi and Manish Kumar Sharma, surrender before the court below within four weeks from today and move an application for bail, the same shall be considered and disposed of expeditiously in accordance with law and in terms of law laid down in the case of Smt. Amrawati and another vs. State of U.P., 2005; Cr.L.J.755, which has been affirmed by Hon'ble the Apex Court in Lal Kamlendra Pratap Singh vs. State of Uttar Pradesh and Ors. reported in (2009) 4 SCC 437.
61. Till then, no coercive action shall be taken against the petitioners Nipun Aneja, Z.I. Alvi and Manish Kumar Sharma.
62. It is made clear that in no case the aforesaid period shall be extended and no excuse shall be entertained.
63. After expiry of the aforesaid period, if the petitioners Nipun Aneja, Z.I. Alvi and Manish Kumar Sharma have not surrendered, then the authorities concerned shall have full liberty to take action in accordance with law.
Order dated: 10.3.2017 GSY