Jammu & Kashmir High Court
Dr. Himanshu Sharma vs State Of J&K; on 6 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.102/2010 c/w
CRMC No. 47/2010
Date of Order: of August, 2018.
i. Dr. Himanshu Sharma Vs. State of J&K
ii. Dr. Lata Sheroan Vs. State of JK & Anr.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Sunil Sethi, Senior Advocate with
Ms Veenu Gupta, Advocate.
For the Respondent(s): Mr P. N. Raina, Sr Advocate with
Mr J. A. Hamal, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. These two petitions, clubbed together, raise a common question of law and the facts as these arise out of the same FIR bearing No. 04 of 2010, registered at Police Station, Gandhinagar, Jammu, for the commission of an offence punishable under Section 306 read with Section 34 RPC and, therefore, require to be determined and decided by a common judgment.
02. The facts culled from the aforesaid petitions are that the police authorities of Police Chowki, Nehru Market, Jammu, received an information on the 22nd day of December, 2009, from the authorities of the Government Medical College, Jammu, to the effect that one Dr. Aparna Saini D/o Sh. Kamal Saini, a Deputy Inspector General of Police, committed suicide at the place of her dwelling, i.e. Government quarter No. 21/C, situate at Gulshan Ground, Jammu. On this information, a Daily Dairy report bearing No. 17 dated 22 nd of CRMC No.102/2010 c/w CRMC No.47/2010 Page 1 of 13 December, 2009, was entered at Police Post, Nehru Market, as a consequence of which, an enquiry, as postulated under Section 174 Cr. P.C. for ascertaining the cause of the death of the deceased, was initiated. The said enquiry culminated into the registration of an FIR, being No. 04 of the year 2010, for the commission of an offence punishable under Sections 306 read with section 34 RPC and, as a sequel thereto, the investigation ensued. On the completion of the investigation of the case, a report was laid against the petitioners in terms of Section 173(2) of the Code of Criminal Procedure. In this report, filed before the Court, it is stated that on the appreciation, evaluation and assessment of the statements of the witnesses recorded under Sections 161 and 164(A) Cr. P.C., as also by reference to some documents, it is established that the petitioners have committed the offence aforesaid. What gets revealed from this report further is that Dr. Aparna Saini was engaged to the petitioner, namely, Himanshu Sharma on 20th of February, 2009 and after this engagement, Dr. Aparna Saini came to know that the petitioner-Himanshu Sharma has illicit relations with Dr. Lata Sheoran, i.e. the petitioner in CRMC No.47/2010, who was residing with the petitioner-Himanshu Sharma in the house in which he lived. The deceased took repeated objections to the conduct of petitioner-Himanshu Sharma and he, in turn, would harass and humiliate her and would also affirm that he will not marry her. Dr. Aparna Saina could not bear this humiliation. She felt that she will be brought to a ridicule in the Society and, therefore, thought it expedient to hang herself to death.
03. Both the petitioners, in their respective petitions, have challenged the vires of the FIR registered against them on the grounds, inter alia, that neither the FIR nor the investigation of the case, at any stage whatsoever, disclosed the commission of any offence against them. The final investigation report laid before the Court of learned Principal Sessions Judge, Jammu, also does not, in CRMC No.102/2010 c/w CRMC No.47/2010 Page 2 of 13 any manner whatsoever, disclose the commission of the offence imputed to them. Registration of an FIR, it is stated, is not an idle formality and cannot be done as a matter of course. An FIR can be registered only after probing deep into the allegations made in light of the law disclosing a, prima facie, offence. The allegations levelled against the petitioners are, prima facie, incapable of making out any offence against them and, therefore, the entire investigation is vitiated in the instant case. It is also stated that if the entire prosecution story is taken to be true on its face value, still, it is not capable of disclosing any offence, much less against the petitioners herein. The proceedings initiated against the petitioners would be an abuse of the power and jurisdiction as is conferred on the Investigating Agency for the registration of the case and would also be an abuse of the process of law. The allegations made in the FIR and the Police report are only in the nature of wild allegations in which the Investigating Agency has surrendered its duty to investigate the matter on the asking of the complainant, a high-ranking Police Officer. Arresting the petitioner-Hemanshu Sharma, humiliating him and his family, almost succeeding in devastating the entire family and nearly coming close/ becoming successful in eliminating an innocent person was the game plan of the Investigating Agency, devised to satisfy the powers and interests other than that of the law or its majesty. The very registering of the FIR has been conceived in deceit, investigation carried out and Challan filed in fraud of the Statute, although, the Investigating Agency, right through, knew that the petitioners are innocent and are being framed in the matter. Fairness is so essential to the concept of investigation and it cannot be conveniently substituted by unfair means/ methods and the allegations, of which any self-respecting human being would be ashamed. It was done only because a case had to be foisted upon the petitioners, whose relationship is that of a Brother and a Sister. The Investigating Agency has shown scant respect for this relation of the petitioners CRMC No.102/2010 c/w CRMC No.47/2010 Page 3 of 13 and, knowingly, false allegations have been levelled against them. Law has been muzzled and silenced to serve the vested interests. It needs to be stated that the petitioner-Dr. Himanshu Sharma was pursuing his MBBS course from Government Middle School, Jammu and the petitioner-Dr. Late Sheoran was also undergoing the same course. In the chargesheet, it is submitted that the petitioners, whose relation was that of a Brother and a Sister, had illicit relations which persuaded the deceased to take an unwarranted step of putting an end to her life. It is also stated that Dr. Aparna Saini wanted the petitioner-Dr Himanshu Sharma to end his relationship with the petitioner, named Dr. Lata Sheoran, which he did not agree and he harassed and humiliated the deceased, which, according to the Prosecution, resulted in the deceased ending her life. This allegation does not disclose the commission of any offence by the petitioners. The proceedings, thus, if allowed to continue, will amount to an abuse of the process of the law. Only because the petitioner-Dr. Himanshu Sharma lacked the influence or did not have the means to meet the men and muscle of the complainant should not and would not make the life of a citizen so dependent on the whim and caprice of an authority which has the power and jurisdiction to register a case, that the very life would be threatened and would practically be taken away. If laws are made as a requirement of the Society, they are to be executed to maintain the same. Laws are not made and executed for being a tool to wreck vengeance or become an instrument for its subversion. Innocence of a citizen cannot be destroyed or beaten into silence by orchestrated noise of manipulation and subversion of law. Petitioners, being innocent, have no reason to suffer further consequences of a false FIR and tainted investigation. Law would lack both courage and conviction to let any innocent being destroyed only because law is capable of misuse as well. In the end, the petitioners have prayed that the proceedings initiated against them before the Court of learned Principal Sessions Judge, Jammu, in case titled 'State v. Dr. CRMC No.102/2010 c/w CRMC No.47/2010 Page 4 of 13 Himanshu Sharma & Anr.', being an abuse of the process of the law, be quashed.
04. Heard and considered.
05. The first question that arises for consideration here is that whether the High Court can, in exercise of the extraordinary and inherent powers vested in it under Article 226 of the Constitution of India and Section 561 Cr.P.C. respectively (Section 561 Cr.P.C. corresponds to Section 482 of the Central Criminal Procedure Code), prevent the abuse of the process of the Court or otherwise to secure the ends of justice. This aspect has been delved upon extensively in the law laid down in the case of 'State of Haryana Vs Bhajan Lal' reported in '1992 SCC (Cri) 426', the relevant extracts of which are detailed below: -
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 institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party;CRMC No.102/2010 c/w CRMC No.47/2010 Page 5 of 13
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."
06. Testing the instant case on the touchstone of the law laid down above, what needs must be said is that the Prosecution case is manifestly attended with the fact that the betrothal of the deceased with the petitioner-Dr. Himanshu Sharma was conducted on 20th of February, 2009. Admittedly, the marriage between them had not taken place. The deceased died under suspicious circumstances which, ultimately, turned out to be a case of suicide. As per the Postmortem examination report, the death of deceased was caused due to Asphyxia, as a result of hanging. There is no suicide note in the instant case. The Prosecution has proposed to rely on circumstantial evidence to establish that soon after the engagement of the deceased with the petitioner-Dr. Himanshu Sharma, it dawned upon the deceased that the petitioners had illicit relations with each other which forced and coerced her to lodge a protest before the petitioner-Dr. Himanshu Sharma and both the petitioners started harassing her as also levelling unfounded allegations against her. This put the deceased in a state of shock and depression. Prosecution has also referred to the call records and the SMS data that revealed frequent communications and chats between the deceased and the petitioner-Dr. Himanshu Sharma on the date of occurrence as also between the petitioners themselves spreading over a period of more than two hours. The text of these conversations/ communications is not available. The statements of Dr. Yasir Ali Bhat and Dr. Asim also reveal that the deceased was upset and disappointed and she blamed the petitioners for disturbing her peaceful life.
07. The next question that arises for consideration is whether on the above set of facts the petitioners can be said to have induced or incited the deceased in CRMC No.102/2010 c/w CRMC No.47/2010 Page 6 of 13 any manner whatsoever which would become a cause for her to take the drastic, harsh and a desperate step of ending her life. Risking repetition, what needs to be stated here is that there is neither any suicide note nor any documentary evidence, in the form of written letters, etc., wherefrom it could be assessed and ascertained that the petitioners instigated or incited the deceased to commit the suicide.
08. Section 306 of the IPC (Corresponding to Section 306 of the RPC) came up for interpretation and elucidation before the Apex Court of the country in a number of cases. In the case of 'Gangula Mohan Reddy v. State of Andhra Pradesh', reported in '2009(8) Supreme 550(555)', it was held that in order to convict a person under Section 306 of the IPC, there has to be a clear mensrea 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 committed suicide. In another case, titled 'K. M. Goswami v. State of Gujarat', reported in '2009(1) Supreme 491', the Supreme Court held that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased with cruelty is not enough.
09. In 'K. V. Prakash Babu v. State of Karnataka', reported in 'AIR 2016 Supreme Court 5430', the Apex Court of the country after taking a cue from a catena of judicial pronouncements discussed the extent and scope of the offences under Section 498(A) and 306 IPC, which are parametric with Sections 498 (A) and 306 of the RPC. It expostulated as to how and in what manner these offences can be said to have been made out in a particular case and the relevant excerpts thereof, that have a direct bearing on the instant case, are reproduced hereinbelow, verbatim et literatim:
CRMC No.102/2010 c/w CRMC No.47/2010 Page 7 of 13"12. In Gurnaib Singh v. State of Punjab[2], while dwelling upon the concept of 'cruelty' enshrined under Section 498-A the Court has opined thus:-
"Clause (a) of the Explanation to the aforesaid provision defines "cruelty" to mean "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide". Clause (b) of the Explanation pertains to unlawful demand. Clause (a) can take in its ambit mental cruelty."
13. The aforesaid analysis of the provision clearly spells how coercive harassment can have the attributes of cruelty that would meet the criterion as conceived of under Section 498-A of the IPC. Thus, the emphasis is on any wilful conduct which is of such a nature that is likely to drive the woman to commit suicide. The mental cruelty which is engraved in the first limb of Section 498-A of the IPC has nothing to do with the demand of dowry. It is associated with mental cruelty that can drive a woman to commit suicide and dependent upon the conduct of the person concerned.
14. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat[3]. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on, but extra- marital relationship as such is not defined in the IPC. The Court analyzing further in the context of Section 498A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498AIPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such a nature as to drive the wife to commit suicide. The two-Judge Bench further opined that:-
CRMC No.102/2010 c/w CRMC No.47/2010 Page 8 of 13"Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide." [emphasis added]
15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat[4], the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to Section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:-
"True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted."
16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one's endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal CRMC No.102/2010 c/w CRMC No.47/2010 Page 9 of 13 behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra-marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.
17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):-
"Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498- A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution."
We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption.
18. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, the daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Deepa, being not able to digest the humiliation, committed suicide. The mother and the brother of Deepa paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498A and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the accused-appellant under Section 306 of the IPC.
CRMC No.102/2010 c/w CRMC No.47/2010 Page 10 of 1319. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments. And we so clarify.
20. Consequently, the appeals are allowed. The conviction under Sections 306 and 498-A of the IPC is set aside. The appellant be set at liberty unless his detention is required in connection with any other case."
10. Applying the ratio of the law laid down above to the case on hand, even if the petitioner-Himanshu Sharma and the deceased would have been in a matrimonial alliance, still then, on the set of facts and circumstances projected in the report laid before the Court under and in terms of Section 173(2) Cr.P.C., a charge or a conviction cannot be sustained for the simple reason that there is neither any suicide note nor any written document to state that the accused abetted the commission of suicide that would fall within the purview and mischief of Section 306 RPC. Extra marital relationship on the part of husband leading to the commission of suicide by the wife cannot invite a conviction under Section 306 of the RPC, but can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments as per the import of the law laid down above. The deceased and the petitioner were not spouses in a matrimonial alliance and, therefore, the question of attributing matrimonial misconduct to the petitioner-Dr. Himanshu Sharma is absolutely out of context. A betrothal or an engagement, in the ordinary parlance, is considered to be a promise to marry and a breach thereof gives the aggrieved party the right to claim damages and restoration of gifts. Agreement to marry is not specifically enforceable. No specific relief can be claimed for its breach. Allegations of levelling of false charges against a 'Fiancée' have to be considered in the backdrop of this legal position.
CRMC No.102/2010 c/w CRMC No.47/2010 Page 11 of 1311. The case of the Prosecution is that the deceased was harassed by the petitioners, but, what was the intensity and the degree of pestering and provocation has not been spelt out anywhere, except for making bald allegations. Even if it be assumed that the petitioners were in a relationship, the petitioner-Dr. Himanshu Sharma and the deceased were not in a matrimonial alliance and, therefore, the deceased could have easily withdrawn from that relationship. There is all substance in the argument of the learned counsel for the petitioners that the deceased could have exercised the option of walking out of the proposed marriage which appeared to be a sinking ship, immediately, after the engagement. In a case for an offence under Section 306, the Prosecution has to prove that the deceased committed suicide and the accused abetted the commission of the said suicide. There is nothing on record to show that the accused conducted in such a manner so as to drive the deceased to commit suicide except for the unadorned statements of witnesses recorded during the investigation of the case which spell out that the deceased was upset and depressed by the relationship of the petitioners. This has to be proved by some acceptable evidence on record that can establish a high degree of mental cruelty which is lacking in the instant case.
12. Paragraph 18 of the judgment of the law cited above fits to the instant case to a "T". In that case, the wife developed a sense of suspicion that her husband was going to a particular house where he got involved with a lady. The evidence on record revealed that the people talked about their relationship. The wife was not able to digest the humiliation, as a consequence of which, she committed suicide. The mother and the brother of the deceased paved in the same path and the Court held that under these circumstances, such an event will not establish or constitute an offence or the guilt of the accused/ appellant under Section 306 of the Act, which corresponds to Section 306 of the RPC.
CRMC No.102/2010 c/w CRMC No.47/2010 Page 12 of 1313. Abetment, necessarily, involves some active suggestion or support to the commission of an offence. The word 'instigate' literally means to goad, urge, forward, provoke, incite or encourage to do an act by any means. The legal position evolved on the subject clarifies that for an offence of abetment, the link has to be brawny and burly. It is not stated anywhere as to how the accused (petitioners herein), goaded or urged or provoked or forwarded or incited or encouraged the deceased in committing the suicide.
14. The cumulative effect of all that has been said and done above is that both the petitions filed by the respective petitioners are allowed and, as a sequel thereto, the FIR bearing No. 04 of 2010, registered against the petitioners at Police Station, Gandhinagar, Jammu, for the commission of an offence punishable under Section 306 read with Section 34 of the RPC as well as the proceedings emanating therefrom, including the one pending before the Court of learned Principal Sessions Judge, Jammu, in case titled 'State vs. Dr. Himanshu Sharma & Anr.', are quashed.
15. Registry to send down the record of the Court below alongwith a copy of this judgment with utmost dispatch.
(M. K. Hanjura) Judge JAMMU August 6th, 2018 "TAHIR"
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