Chattisgarh High Court
Madan Lal Nag vs State Of Chhattisgarh on 25 August, 2023
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 490 of 2020
Madan Lal Nag S/o Shri B. R. Nag, Aged About 54 Years R/o Nagari,
District Dhamtari Chhattisgarh, District : Dhamtari, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through District Magistrate, Narayanpur,
District Narayanpur Chhattisgarh, District : Narayanpur, Chhattisgarh
2. Station House Officer, Police Station Narayanpur, District Narayanpur
Chhattisgarh., District : Narayanpur, Chhattisgarh
3. Smt. Sarita Soni, Wd/o Late R.P. Soni, R/o Mangal Chowk, Near
Lafagarh Gas Agency, District Bilaspur Chhattisgarh, District :
Bilaspur, Chhattisgarh
---- Respondents
For Petitioner : Mr. Awadh Tripathi, Advocate
For Respondents No.1 & 2/State : Mr. Chitendrta Singh, PL
For Respondent No.3 : Mr. Saurabh Dangi, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
25.08.2023
1. The petitioner has filed this petition challenging the final report pertaining to Crime No. 15/2014 for the commission of an offence punishable under Section 306 read with Section 34 of IPC and the order dated 06.11.2017 whereby the learned trial Court declined to accept the closure report in Criminal Case No. 200/2017 pending before the Chief Judicial Magistrate, Narayanpur C.G. 2
2. Brief facts of the case are that the petitioner is a Sub-Engineer in the Rural Engineering Services Department. At the relevant time he was posted at Narayanpur C.G. whereas one R. P. Soni, Executive Engineer, Rural Engineering Services, Narayanpur Division was also posted there. It is alleged that Mr. Soni committed serious irregularities and illegalities in the award of the contracts to the contractors and the same was noticed by the department and he was served with the show cause notice by the Chief Engineer, Rural Engineering Services, Officer of the Development Commissioner, Raipur. After the issuance of show cause notice, an enquiry was initiated against Mr Soni, he was found absent from his duties and information in this regard was sent to the Principal Secretary, Department of Panchayat and Rural Development, Government of Chhattisgarh. The Chief Executive Officer, Zila Panchayat, Narayanpur received a complaint from one of the secretaries of Dandakaranya Forest Conservation and Research Centre, Narayanpur to the effect that the construction of a laboratory at Girls Hostel (Sabari Ashram), Chhote Dongar has not been completed, whereas on the papers the work was shown to be completed and the above act comes under the offence punishable under the provisions of the Indian Penal Code. A direction was issued to take action against the erring officials immediately. The complaint dated 07.12.2011 was forwarded to Mr. R. P. Soni who was in-charge of this programme. On 31.03.2012 another complaint was made by one Rajendra Prasad Jaiswal against Shri R. P. Soni with regard to the irregularities in payment. On 31.05.2012, the irregularities committed by Mr Soni were published in the local newspaper namely Shikhar Varta.
3. After receipt of aforesaid complaints, the Chief Executive Officer, Zila Panchayat, Narayanpur vide order dated 02.06.2012 constituted a three- 3 member committee consisting of - 1) President - Shri Prakash Sarvey, the then Sub Divisional Magistrate (2) Member - Shri Navin Shah, Executive Engineer, Prime Minister Gram Sadak Yojana and (3) Member - Shri S. D. Khare, Accountant, Zila Panchayat, Narayanpur to enquire about the quality of construction of the WBM road constructed by the Rural Engineering Department. On 02.06.2012 the Principal Secretary, Department of Panchayat and Rural Development, Raipur placed Mr R. P. Soni under suspension and the disciplinary proceeding was contemplated against him thereafter a show cause notice was also issued to Mr. R.P. Soni for initiation of departmental enquiry under Rule 10 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules 1966.
4. On 22.06.2012, the three-member committee submitted a report to the effect that Mr R.P. Soni was negligent in the discharge of his duties. On 04.07.2012, another show cause notice was issued to Mr. Soni in respect of the report submitted by the committee with regard to embezzlement committed in the construction of the boundary wall. On 16.08.2012 at about 4-5.00 p.m. smoke from the fire was noticed at the residence of Mr. R.P. Soni at Banglapara, Narayanpur and when the police reached the spot and entered the house, the dead body of Mr. Soni with 100% burn injuries was found and a suicide note was also recovered from his pocket. The police registered Merg No. 34/2012 at police station Narayanpur and after two years, the FIR was registered. The police after investigation submitted the closure report but the learned Chief Judicial Magistrate declined to accept the closure report vide order dated 14.01.2016 and directed further investigation. Thereafter, the learned Chief Judicial Magistrate took cognizance of the offence under Section 190 Cr.P.C. 4 against the accused persons including the petitioner. The FIR was registered against Rajesh Singh Rana, the then CEO of Janpad Panchayat Narayanpur, the petitioner who was the technical coordinator in Janpad Panchayat Narayanpur, Goutam Jain and Mukesh Jain. The police after further investigation filed charge-sheet against the accused persons including the petitioner. A criminal revision was preferred against order of taking cognizance by the learned Chief Judicial Magistrate but the same was dismissed.
5. Learned counsel for the petitioner submits that the impugned order dated 06.11.2017 passed by the Chief Judicial Magistrate, Narayanpur C.G. whereby the learned trial Court declined to accept the closure report and passed the order for further investigation is erroneous. He submits that the Chief Judicial Magistrate has failed to appreciate the documents produced by the petitioner which would show that show-cause notices were issued by the other officers whereas the petitioner was one of the members of the enquiry committee and he was not directly involved in the incident. It is also stated that the trial court has overlooked the object of Section 197 Cr.P.C. as the petitioner in his official capacity conducted an enquiry in pursuance of an order issued by superior authorities. The statement made by Mr Soni itself is suspicious as the correct reasons for committing suicide were not disclosed by him as many departmental enquiries were pending against him. Mr. Soni in his suicide note has assigned three reasons for his suicide but none of the reasons establishes that the petitioner was liable for such incident. It is also stated that the petitioner was performing his official duty therefore without obtaining sanction under Section 197 of Cr.P.C. he could not be prosecuted. He would further submit that the sanction is not a mere formality but it is a 5 protective umbrella which saves the government servant from false and frivolous criminal action. Finally, learned counsel for the petitioner would pray to quash the charge-sheet, various orders passed by the Chief Judicial Magistrate Narayanpur and the entire proceedings of Criminal Case No. 200/2017.
6. On the other hand, counsel for the State and private respondent would oppose the submissions made by counsel for the petitioner. It is submitted that due to abetment extended by petitioner and other accused persons, the deceased committed suicide and the ingredients of Sections 107 and 306 of IPC are very well present in the charge-sheet. They would submit that this petition is liable to be dismissed.
7. I have heard counsel for the parties and perused the material available on record with utmost circumspection.
8. It would be advantageous to go through Sections 190 and 197 of the CrPC which are as under:-
190. Cognizance of offences by Magistrates.--
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try 6
197. Prosecution of Judges and public servants.--
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] [Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, 3 [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives 7 the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
9. In the matter of Subramaniam Swamy Vs. State of Manmohan Singh (2012) 3 SCC 64 , it has been held by the Apex Court that:
"49. CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab [1996 Cri LJ 2962 (P&H)], State of Bihar v. P.P. Sharma (1992 SCC (Cri) 192), Supt. of Police (CBI) v. Deepak Chowdhary (1995) 6 SC 225, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guide- lines are extracted below:
"2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.
Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.
10. This petition has also been filed by the petitioner on the ground that 8 the offence under Sections 107 & 306 of IPC is not made out against him. The charge-sheet filed against the petitioner and other co-accused persons under Section 306/34 IPC, the statements of the witnesses stating that the petitioner and the co-accused have abetted the deceased to commit suicide and the suicide note of the deceased have been annexed along with this petition.
In the suicide note it has been mentioned that " lh-bZ-vks- Jh jk.kk lkgc 3-50 yk[k dk voS/k Hkqxrku xkSre tSu dks djokus gsrq ckj-ckj ncko cuk jgk Fkk] [kqn vkQhllZ Dyc esa ,oa tkus dgka&dgka dk;Z djok;k ,oa Hkqxrku voS/k #i ls 'kkldh; jkf'k ls djok jgk Fkk ,oa Hkqxrku u djus ij fjyho ugha d#axk ,slk dgk tk jgk Fkk] bl dkj.k esjh ekufld fLFkfr fcxM xbZ ,oa eq>s vkRegR;k gsrq ck/; gksuk iMkA"
11. Sections 107 and 306 of IPC read 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.
Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
9
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.
12. In the matter of Madan Mohan Singh Vs. State of Gujarat and Another, MANU/SC/611/2010, the Hon'ble Apex Court has held that:-
"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.
13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite 10 nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of W.B. [2005 (2) SCC 659], this Court had quashed the proceedings initiated against the accused.
14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work."
13. In the matter of Velladurai Vs. State represented by the Inspector of Police, MANU/SC/0644/2021 (Cr.A. No. 953 of 2021) the Hon'ble Apex Court held in para 9 and 9.1 as under:
9. Now so far as the offence under Section 306 IPC is concerned, in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide.
Therefore, in order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide. As observed and held by this Court in the case of Amalendu Pal (supra), mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC.
9.1 Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide. In the instant case, the allegation against the appellant is that there was a quarrel on the day of occurrence. There is no other material on record which indicates abetment. There is no material on record that the appellant-accused played an active role by an act of instigating the deceased to facilitate the commission of suicide. On the contrary, in the present case, even the appellant-accused also tried to commit suicide and consumed pesticide. Under the circumstances and in the facts and circumstances of the case and there is no other material 11 on record which indicates abetment, both the High Court as well as the learned trial Court have committed an error in convicting the accused for the offence under Section 306 IPC.
14. In light of the judgments passed by the Hon'ble Supreme Court, it can safely be held that for invoking protection under Section 197 of the CrPC, the acts of the accused said to be committed cannot be divorced from the discharge of the official duty. In the present case, the petitioner was a member of an enquiry committee which was constituted by superior authorities. The petitioner submitted a report along with other members of the Committee and he was not directly involved in the matter. Further, there is no nexus between the suicide committed by Mr. Soni and the duty discharged by the petitioner. In order to bring a case within the provisions of Section 306 of IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing a certain act to facilitate the commission of suicide.
15. In the present case, the allegation made in the FIR as well the material collected during the investigation even if they are taken at their face value and accepted in their entirety; do not prima facie constitute the offence under Section 306/34 of IPC against the petitioner.
16. In the light of the above principles and looking at the facts of the case, both the grounds of the petitioner succeed, firstly, that the act of the petitioner was in official capacity, therefore, the prior sanction under Section 197 Cr.P.C. is required and without prior sanction, the Magistrate cannot take cognizance against the petitioner and secondly, the charge sheet does not have any material as per the law laid down by the Apex 12 Court for the offence punishable under Section 306 IPC.
17. For the reasons stated above, the present petition filed under Section 482 Cr.P.C. succeeds. The order dated order dated 06.11.2017 passed by the Chief Judicial Magistrate, Narayanpur C.G. in Criminal Case No. 200/2017; the FIR and criminal proceedings concerning the petitioners are hereby quashed and set aside. The petitioner is discharged of the charges leveled against him.
Sd/-
(Rakesh Mohan Pandey) Judge Vishakha