Telangana High Court
P.Sudhtan Babu vs The State Of Telangana on 5 September, 2018
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
Crl.P. No.7547 OF 2018
ORDER:
This criminal petition is filed under Section 482 Cr.P.C.to quash the proceedings in crime No.175 of 2017 of Tandur Police Station, Vikarabad District, registered for the offences punishable under Section 306 IPC, on various grounds.
The petitioner is A2 in the above crime and the 2nd respondent is the de facto complainant.
The 2nd respondent lodged report with the Railway Police Station, Vikarabad alleging that on 24.08.2016 at 13.45 hours at km No.74/10-12 on down line between Tandur-Raukmapur Railway Track that the deceased Gajula Maheshwar, who was working as Computer Operator on out sourcing basis for the last eight years in Tandur Municipal Office. The deceased committed suicide due to mental and physical harassment and pressure meted out by him in the hands of former Municipal Commissioner Gopaiah and accountant Sudhatan Babu. Based on the complaint, Crime No.121 of 2016 was registered under Section 174 Cr.P.C. by the Railway Police and subsequently, section of law was altered to Section 306 IPC and transferred to Tandur Police Station and registered as Crime No.175 of 2017 for the offence punishable under Section 306 IPC.
The basis of registration of crime is the suicide note of the deceased where the deceased stated as follows:
"Naa chavuku karanam ex Commissioner Gopaiah sir, accountant Sudhathan Babu. Nannu anavsaranga pension duty vaddu sir ani ante, kudaradu Commissioner bayapetti ninnu surrender chesta nane bedirinchinadu samajamloo ippativaraku, manchigaa vunna nenu, Gopaiah sir, Valana naku chedda peru ravadam jarigindi, intilo elanti Godavalu levu, naa barya Sharada manchimanishi, alanti 2 barya dorakadam naa adrustam. Sharada nannu kshaminchu, nenu vellipothunnanu, pillalanu chusuko."
Based on suicide note, the police concluded that the petitioner allegedly abated the deceased to commit suicide. The allegations made in the suicide note at best discloses that the Commissioner Gopaiah and accountant Sudhathan Babu posted the deceased to discharge duties in "pension section" despite his resistance to work there apprehending that his reputation will be at stake. The petitioner is an employee under the control of the Municipal Commissioner and when his services are placed at the disposal of the Municipal Commissioner, he can entrust any work in the office though the deceased is an outsourcing employee. Therefore, posting the deceased in a particular section despite his resistance to work there would constitute an offence punishable under Section 306 IPC to be decided in this case.
Learned counsel for the petitioner raised several contentions in the petition mainly contended that the allegations in the written report lodged with the police including the suicide note do not constitute offence punishable under Section 306 IPC and requested to quash the proceedings.
However, learned Public Prosecutor opposed the petition on the ground that the statement of LW.1 - wife of the deceased recorded under Section 161(3) Cr.P.C. clearly discloses that at the instance of the petitioner, her husband committed suicide and requested to dismiss the petition since the allegations in the FIR constitute offence punishable under Section 306 IPC and placed on record the statements of witnesses recorded under Section 161 (3) Cr.P.C., during investigation.
Considering the rival contentions and perusing the material available on record, the point that arises for consideration is: 3
Whether the allegations made in the complaint lodged with the police including the suicide note constitute the offence punishable under Section 306 IPC accepting the allegations both in the complaint and the suicide note as true?
POINT:
As seen from the allegations made in the complaint, death of Gajula Maheshwar is unnatural and the nature of death is not in dispute, but the cause of death is suicide, as he was posted to work in pension section by the ex-Municipal Commissioner. The services of the deceased were placed at the disposal of Municipal Commissioner, having overall control on employees working in the municipality and the Municipal Commissioner can post him to work in any section of the offence and mere posting in a particular section i.e. pension section would not amount to abetment.
In V.Shankaraiah v Sate of Andhra Pradesh1 wherein the learned single Judge of this Court held that when there is no evidence that the accused aided or induced the deceased to commit suicide, the charge against the accused is liable to be quashed. Similarly, in M. Mohan v. State representated by Deputy Superintendent of Police2, the Apex Court held that while interpreting Section 306 I.P.C. held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and 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 is clear that in order to convict a person under Section 306 I.P.C. there has to be a clear mens rea to commit the offence. It also requires an active act or direct act, which lead 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. 1 2002(1) ALD Crl.812 2 AIR 2011 SC 1238 4 From the principle laid down by the Apex Court in the above judgment, it is clear that the act done by the petitioner/accused must be of such nature which led the deceased to commit suicide, having no other option except to commit suicide. From the suicide note and the statement of the wife of the deceased, the cause for commission of suicide is, posting the deceased in pension section despite his résistance, by the ex- commissioner and the accountant, the petitioner herein. Entrustment of work when his services are placed at the disposal of the Commissioner would not constitute of abetment as defined under Section 107 IPC.
Section 107 IPC defined as follows:
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.
5In view of the language in Section 107 IPC, there must be an instigation by any person or engagement by several persons in any conspiracy for the doing illegal act or intentionally aids, by any act or illegal omission, the doing of that thing, constitutes abetment.
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in I.P.C. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These ingredients are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. (vide Amalendu Palalias Jhantu v. State of West Bengal3 and Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh4.
3 AIR 2010 SUPREME COURT 512 4 AIR 2002 SUPREME COURT 1998 6 In Gangula Mohan Reddy v. State of A.P5, the word Instigation is defined as to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out.
In Shri Ram v. The State of U.P6 the Supreme Court had an occasion to interpret the word 'intentional aiding'. In order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107.
In Jamuna Singh v. State of Bihar7, the Supreme Court held that, in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner in which the abetment was made. Under Section 107 I.P.C. a person abets the doing of an act in either of three ways which can be : instigating any person to do an 5 AIR 2010 SUPREME COURT 327 6 AIR 1975 SUPREME COURT 175 7 AIR 1967 SUPREME COURT 553 7 act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under Section 115 I.P.C., even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed.
Similar question came up before this Court in Sri Yeneti Apparao v. State of A.P8, wherein, this Court had an occasion to decide the aspect of what would amount to abetment. This Court after adverting to the definition of 'abetment', under Section 107 I.P.C, and explanations annexed thereto, held as follows:
"From this it is clear that act, which merely amounts to aiding the commission of an offence, cannot be said to be an abetment as defined under the provisions of law. When looked in that perspective it is clear in the instant case, that A2, who was a Village Administrative Officer and was subordinate to A1 was simply obliging him and no doubt the said obliging would be aiding, but cannot be said to be intentional aiding as it is not the case of the prosecution and that the prosecution has not attributed any malice to A2 and it has come forward with the theory that he was demanding the money on behalf A1. Hence this Court is of the view that A2 is entitled to benefit of doubt."
(emphasis supplied) Learned counsel for the petitioner, during hearing would draw the attention of this Court to the judgment of the Apex Court in Pawan Kumar v State of H.P., wherein at para 32 dealt with the requirement to constitute offence punishable under Section 306 IPC and defined the word 'abetment'. Based on the principles laid down in the earlier Judgment in Chitresh Kumar Chopra v State (Government of NCT of Delhi)9 and reiterated the principles laid down in the earlier judgment. Finally in para 41, the Court is 8 2007 (1) ALD (Crl.) 83 (AP) 9 (2009) 16 SCC 605 8 of the view that mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 306 IPC is not sustainable. A casual remark that is likely to cause harassment in ordinary course of things will not fall within the purview of instigation. A mere reprimand or a word in a fit of anger will not acquire the status of abetment. There has to be positive action that creates a situation for the victim to put an end to life.
If these principles are applied to the present facts of the case, posting the deceased Gajula Maheshwar in pension section in the office of the Municipal Commissioner, who is having over all control over the employees and that the services of the deceased were placed at the disposal of the municipal commissioner, the act of posting the deceased in the pension section would not constitute the word 'instigation' and the petitioner is not liable to be proceeded for the offence punishable under Section 306 IPC. The other allegation is that they threatened to surrender to the agency, such alleged threat also do not constitute abetment. A similar question came up before this Court in Ravankol Yadagiri Goud and another v State of Telangana10 expressed the same view.
In view of the principles laid down in the above judgments, even if the allegations made in the complaint lodged with the police including the suicide note, if accepted on its face value, it would not constitute offence punishable under Section 306 IPC as the petitioner is only an employee working in the same department, but it is alleged that at his instance the Municipal Commissioner posted the deceased Gajula Maheshwar in the pension section to discharge his duties as outsourcing employee on payment of salary as agreed and such act would not constitute the offence punishable under Section 306 IPC. When the allegations made in the 10 2017(1) ALD (Crl.)787 9 complaint do not constitute offence punishable under Section 306 IPC, the investigating agency would not got jurisdiction of the mater in view of the law declared by the Apex Court in State of West Bengal v Swapan Kumar Guha case referred supra. Therefore, registration of crime and took up investigation based on the suicide note or the allegations made in the complaint is without jurisdiction and thereby the proceedings against the petitioner/A2 are liable to be quashed.
In the result, the criminal petition is allowed quashing the proceedings in Crime No.175 of 2017 of Tandur Police Station, Vikarabad District, registered for the offences punishable under Section 306 IPC.
Pending miscellaneous petitions in the petition, if any, shall stand closed.
____________________________ M.SATYANARAYANA MURTHY,J 05.09.2018 kvrm