Madras High Court
S.S.Krishnamoorthy vs The State Represented By on 8 March, 2016
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.03.2016
CORAM
THE HONOURABLE MR.JUSTICE V.S.RAVI
Crl.O.P(MD)No.22379 of 2015
S.S.Krishnamoorthy .. Petitioner/Accused No.1
Vs.
1. The State represented by
The Deputy Superintendent of Police,
Crime Branch CID., Metro-II,
Egmore,
Chennai ? 600 008.
(Ref Crime No.1 of 2015 dated 08.03.2015
.. Respondent /
Complainant
2. M.Saraswathi
W/o.Late.S.Muthukumarasamy .. Respondent/ Defacto Complainant
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.,
praying this Court, to call for the records and to quash the case in
P.R.C.No.40 of 2015 pending on the file of the learned Judicial Magistrate
No.I, Tirunelveli, for the offences under Sections 120(b) I.P.C., r/w Section
7 of Prevention of Corruption Act, 1988 r/w 109 I.P.C., and 306 I.P.C., r/w
34 I.P.C.
!For Petitioner : Mr.A. Ramesh, Learned Senior Counsel
for Mr.D.Shanmugaraja Sethupathi and
and Mr.S.Chandrasekar
For Respondent No.1 : Mr.S. Shanmugavelayutham,
Learned State Public Prosecutor
Assisted by Mr.P.Kandasamy,
Government Advocate(Crl. Side)
For Respondent No.2 : No appearance and also R2 called absent
though notice of hearing served.
:O R D E R
This petition has been filed by the petitioner/accused No.1 seeking the relief to call for the records and to quash the proceedings in P.R.C.No.40 of 2015, pending on the file of the learned Judicial Magistrate No.I, Tirunelveli.
2. The brief averments stated in the petition are as follows:-
On 20.02.2015, Saraswathy, Wife of Muthukumarasamy has received the information about the death of her husband, namely, Muthukumarasamy, Assistant Executive Engineer and in-charge of the Executive Engineer in Agricultural Engineering Department, Tirunelveli, due to being hit by Dhadar Express (Train No.11021) at around 12.35 hours in between Thalaiyuthu and Tirunelveli Railway Junction, near pillar KM 27/300-400.
2.1. Based upon the said complaint, at the very first instance, the First Information Report has been registered in Crime No.44 of 2015 under Section 174 of Cr.P.C.,(police to inquire and report on suicide, etc.,) and the investigation also commenced. Thereafter, on 07.03.2015, vide a note the learned Director General of Police, Tamil Nadu and on 08.03.2015, as per the instructions of the learned Additional Director General of Police, the investigation in Crime No.44 of 2015 has been transferred to C.B.C.I.D., O.C.U., Tirunelveli City and on 08.03.2015, again another First Information Report has been registered in Crime No.1 of 2015 by the CBCID, OCU, Tirunelveli City under Section 174 Cr.P.C.,(police to inquire and report on suicide, etc.,) and also, investigation commenced and on 04.04.2015, the learned Deputy Superintendent of Police, C.B.C.I.D., has altered the sections of the case from 174 Cr.P.C.,(police to inquire and report on suicide, etc.,) to one under Sections 120(b), 306 and 7 of Prevention of Corruption Act, 1988 and submitted the same to the learned Judicial Magistrate No.I, Tirunelveli.
2.2. Further, the Investigation Authorities have added three persons as accused, namely, accused No.1 S.S. Krishnamoorthy, Former Minister of Agriculture Department, Tamil Nadu, accused No.2 M.Senthil, Chief Engineer of Agricultural Engineering Department and accused No.3 Poovaiah, Personal Secretary of A1 and on 17.11.2015, the petitioner herein has received the summons from the learned Judicial Magistrate No.I, Tirunelveli and also, approached this Court, seeking relief for quashing the said proceedings, on the file of the learned Judicial Magistrate No.I, Tirunelveli.
2.3. Further, it is stated in the Grounds of the Quash Petition that the offences have not been made out, as pointed out at Page No.11 of the petition. Further, the petitioner has also pointed out the details through compartmentalized Flow Chart for the easy understanding of the matter, as specifically pointed out in Page No.14 of the present petition. Further, the Government of Tamil Nadu has issued orders, to fill up 191 vacancies in Driver post on temporary basis across Tamil Nadu and not for any particular region that too especially for Tirunelveli, during the year 2012. Further, even before, the said Muthukumarasamy, assumed the Additional Charge as an Executive Engineer of Agricultural Engineering Department, the candidates have been short listed and the entire process of selecting the candidates has been completed. Hence, for doing or forbearing to do any official act and for showing or forbearing to show any favour or dis-favour to any person and for rendering or attempting to render any service or disservice to any person, could not arise, at all. Further, none of the candidates have been approached by the accused No.1 or his assistants, demanding money.
Therefore, the essential ingredients of Section 7 of the Prevention of Corruption Act, 1988, do not attracted, so as to charge the petitioner. Further, there is no illegal act or an act which is not illegal in itself but is done by illegal means, mentioned as against the petitioner herein. Further, the statements of the witnesses, are not capable of converting them into legal evidence since most of them are hearsay and some of them are based on the surmises and conjunctures and there is no direct evidence to even suggest the petitioner herein, has demanded money from the candidates, through his direct subordinates or by himself. Further, it is not the case of the prosecution that the petitioner herein, have even spoken to the said Muthukumarasamy(deceased) either in person or over phone. In such circumstances, charging a person for an offence under Section 120(b), based on the irrelevant materials is not legally correct. Without a positive act on the part of the petitioner herein to instigate or aid in committing suicide, proceedings cannot be initiated. Further, In the present case, there is not even an iota of fact to even suggest that, the petitioner herein, has the mens rea to force or abet, the deceased Muthukumarasamy, to commit suicide. Further, there is no shred of record to suggest that the petitioner herein has any active participation, in driving the deceased to commit suicide. Furthermore, there is no direct or indirect participation of the petitioner herein, to abet the act of the deceased to commit suicide. Hence, the petitioner herein, cannot be roped in without any relevant materials. Further, the prosecution is also not legal, due to the fact of the mis-joinder of charges and also, cognizance taken is also illegal, in the eyes of law. Further, summoning of the accused in a criminal case is a serious matter. Furthermore, taking of cognizance itself is illegal, for the above mentioned reasons, and on this score, the prosecution is liable to be quashed. Therefore, the petitioner herein has requested to call for the records and quash the case in P.R.C.No.40 of 2015, pending on the file of the learned Judicial Magistrate No.I, Tirunelveli, for the offences under Sections 120(b) I.P.C., r/w Section 7 of Prevention of Corruption Act, 1988 r/w 109 I.P.C., and 306 I.P.C., r/w 34 I.P.C., as against the petitioner herein.
3. The brief averments made in the counter statement, filed by the first respondent, are as follows:-
Initially, the case in Crime No.44 of 2015, under Section 174 Cr.P.C., has been registered by Tirunelveli Railway Police Station, based on the complaint of Saraswathi(R2) herein. In the said Complaint, the second respondent has stated that her husband, namely, Muthukumarasamy, aged 57 years, who has served, as Assistant Executive Engineer and in-charge Executive Engineer in Agricultural Engineering Department, Tiruneveli, died, due to being hit by Dhadar Express(Train No.11021) on 20.02.2015 at around 12.35 hours in between Thalaiyuthu and Tirunelveli Railway Junction near pillar KM 27/300-400 and thereafter, the above case has been transferred to C.B.C.I.D., for further investigation, as per the orders of the learned Director General of Police, Tamil Nadu as per the orders issued in R.C.No.034582/Crime-IV(2) of 2015, dated 07.03.2015 and on 08.03.2015, the Inspector of Police, C.B.C.I.D., O.C.U., Tirunelveli City has registered the case in Tirunelveli O.C.U C.B.C.I.D., Crime No.01 of 2015 under Section 174 Cr.P.C., at 12.00 hours and also, he has submitted the First Information Report to the learned Judicial Magistrate No.I, Tirunelveli, on point of jurisdiction and took up further investigation. During the course of the investigation, the evidence has been collected in the case, revealed the commission of offence under Sections 120(B), 306 of I.P.C. and Section 7 of the Prevention of Corruption Act 1988. Further, the learned District Collector, Tirunelveli has convened the committee on 05.12.2014 and approved the selected list of 7 candidates for issuance of appointment orders by the Executive Engineer, Agricultural Engineering Department, Tirunelveli and the said Muthukumarasamy could not collect money demanded from the selected candidates, as per the instruction of the accused Nos.2 and 3. Further, the said Muthukumarasamy has arranged for a sum of Rs.6,00,000/- from his G.P.F Account and tried to avail a loan of Rs.5,00,000/- from his friend, namely, Ashokkumar. The said Muthukumarasamy could not mobilize the demanded bribe amount despite his efforts and thus, he has committed suicide, by jumping in front of Dhadar Express on 20.02.2015. Further, the statements of the witnesses have made out the case against the petitioner herein. The deceased could not bear the pressure exerted by the accused and thus, he has committed suicide. The act of suicide by the deceased would not have taken place, but for the pressure exerted on him to collect the illegal gratification from the drivers who are being appointed in the Agricultural Engineering Department.
Further, there is no illegality in taking of cognizance of the case as alleged in the petition. In any case, the said point is only a technical point and there are no valid reasons available to quash the said proceedings.
4. Further, this Court has given the careful and anxious consideration, to the submission made by the both sides and also, perused the materials available on record, with regard to the case of the petitioner herein.
5. From the submissions put forth on behalf of the both sides, the following point arise for consideration, in the present petition :-
Whether, the petitioner herein is entitled to get relief, as prayed in the petition, for the reasons and grounds stated in the petition and also, based upon the submissions made on behalf of the petitioner as well as the respondent No.1 herein?
6. The following facts and details, emerge from the materials available on record, with regard to the case filed as against the petitioner herein:-
S. No. Dates Events
1. 31.01.2012 Government of Tamil Nadu issued G.O. Ms 24 (Agri Department) to fill up 191 driver posts on temporary basis at consolidated salary of Rs.9,000/- in Agricultural Department.
2. 28.02.2014 Joint Director Agriculture, Tirunelveli replied that there are 10 vacancies in Tirunelveli District vide ref 1/8519/11(5).
3.
07.03.2014 The Executive Engineer, Agricultural Engineering Department requested the learned District Collector, Tirunelveli to issue a NOC for the selection.
4. 06.06.2014 The Learned District Collector, Tirunelveli issued a ?NOC?.
5. 25.06.2014 The Executive Engineer, Agricultural Engineering Department, requested the District Employment Officer, Tirunelveli to furnish a list of eligible candidates.
6. August 2014 Senthil, The Chief Engineer, Agricultural Engieering Department met the Agri Krishnamoorthy(petitioner herein), Minister of Agricultural Department at MLA Hostel and discussing about various issues and also about appointment of drivers in the Department.
7. 01.09.2014 Muthukumarasamy(deceased) assumed Additional charge of Executive Engineer, Agricultural Engineering Department, as Sam Selvaraj(incharge) has gone under Medical Leave.
8. 05.12.2014 Collectors Meeting in which Chandrasekaran, Joint Director Agri Department participated in the meeting, in which appointment of 7 drivers have been approved by the selection team.
9. 21.01.2015 Muthukumarasamy has applied for part withdrawal of GPF amount.
10. 30.01.2015 GPF amount has been granted to Muthukumarasamy at the Chief Engineer's Office.
11. First week of February 2015 Deivendran has contacted Senthil, Chief Engineer and informed that Muthukumarasamy(deceased) has informed that no one is ready to make payment as the driver post is on temporary basis and also requested the Chief Engineer to get the nod of the Minister.
12. February 2015 11 p.m., Poovaya has come down to Palayamkottai for her daughter's treatment. By this time Muthukumarasamy has contacted the said Poovaya and informed that he needs to meet him.
On the next day Poovaya has met Muthukumarasamy at Maharaja Bus stop. The said Muthukumarasamy has informed that the Chief Engineer is forcing / torturing to collect Rs.1,75,000/- for the driver post. If not he informs that he will be suspended and sought help of the said Poovaya. The said Poovaya in turn has informed that he cannot help him.
The Poovaya has informed the issue to Minister and Minister has informed that will be taken care by the Chief Engineer. He has again said the Minister do not bother about the same.
13. 11.02.2015 Ashok Kumar has met Muthukumarasamy(deceased) along with Nellaiyappan, Office Assistant, Muthukumarasamy has requested Ashok Kumar to lend a sum of Rs.5,00,000/-.
When the said Ashok Kumar has asked for the reason, he informed that he has to settle a sum of Rs.11 lakhs in connection with appointment of 7 drivers posting. Further, Muthukumarasamy has informed that he has taken a sum of Rs.6 Lakhs from the GPG Account.
The said Ashok Kumar insisted not to make the payment and informed that they may request the learned District Collector to cancel the order. In-turn Muthukumarasamy informed that he has already seen the learned District Collector, who refused to cancel the order.
But, the said Ashok Kumar has informed that payment need not be made, as he has acquaintance with the Minister's P.A. Mr.Thiyagarajan, so that we can meet the Minister directly.
14. 16.02.2015 Muthukumarasamy(deceased) has contacted Deivendran and informed that he has issued appointment orders for the Driver post as instructed by the learned District Collector. The said Deivendran has consoled Muthukumarasamy and informed him not to worry about the issue.
15. 16.02.2015 4 p.m., Muthukumarasamy(deceased) has issued the appointment letters and handed over the same to P.Subramaniam, Office Superintendent and instructed him to dispatch the same through Registered Post.
This fact has been informed to Senthil, Chief Engineer.
16. 17.02.2015 Chandrasekar has met the learned District Collector and the learned District Collector has enquired about the character of Muthukumarasamy(deceased) for which Chandrasekar has given a good opinion. On the same day Chandrasekar has contacted Muthukumarasamy and enquired about the issuance of posting orders for which, he said that he has already issued orders.
17. 20.02.2015 9.25 a.m., Peter Isac and Muthukumarasamy have gone to Auditor's house and Muthukumarasamy has requested Auditor's wife for his Income Tax Returns for the Assessment year 2009-2010, 2010-2011 and 2011-2012 as he has to give it to the construction Company which is constructing his house.
Auditors wife informed to contact after 10 a.m., since no one is available in the office and she has given the visiting card of the Auditor.
By this time Peter Isac has received a condolence message of one Murugabackiyam. He has informed the same to Muthukumarasamy for which he said he is on leave. Further, when Peter Isac has questioned as to whether he is attending Collectors Meeting he said he is on leave. After, that Muthukumarasamy has taken his two wheeler and gone towards Palai Bus stop.
18. 20.02.2015 12.35 p.m., Muthukumarasamy has employed as Assistant Executive Engineer, Agricultural Engineering Department met with an untimely death (Train Accident) near Thachanallur Railway Gate, Tirunelveli District.
19. 20.02.2015 1.30 p.m., Saraswathy preferred a complaint to the Railway Police, Tirunelveli, regarding death of her husband near the Thachanallur Railway Gate, due to train accident. She has categorically stated that her husband has taken leave on the day.
Based on the above complaint the Special Sub Inspector of Police, has registered a First Information Report in Crime No.44 of 2015 under Section 174 Cr.P.C., and commenced investigation.
20. 08.03.2015 The Inspector of Police, C.B.C.I.D.,O.C.U., Tirunelveli District has registered a First Information Report in Crime No.01 of 2015 under Section 174 Cr.P.C., and commenced investigation.
21. 04.04.2015 Section Alteration Report and Section has been altered to 120(b), 306 I.P.C., and Section 7 of Prevention of Corruption Act 1988 from 174 Cr.P.C.,
22. 31.12.2015 Superannuation date of Mr.Muthukumarasamy.
7. The learned senior counsel appearing for the petitioner has vehemently pointed out that the factual events of the case have not been taken into consideration in proper manner, and also, in accordance with law, by the respondent No.1, before, filing the second First Information Report in Crime No.1 of 2015 by the C.B.C.I.C., O.C.U., Tirunelveli City under Section 174 Cr.P.C., and also, for taking further, steps by the preparation of Alteration Report. Further, when certain things have to be done in certain way, by the first respondent, then, they have to follow the said appropriate provisions, in accordance with law only. All the evidences collected on behalf of the respondent are seen to be very much hearsay in nature and also, one person has heard the news and then, he has passed on, the news to another person and again, the another person has passed on the news to others and it is also pertinent to point out that there is, factually, no direct evidence connecting the nexus between the petitioner, and the deceased person. On a mere perusal of the materials on record, it is seen that there is no strong evidence, as against the petitioner, as pointed out by the first respondent in his counter petition, dated 09.12.2015, at para 16. Further, the learned senior counsel has submitted that in fact, the accused No.1 has informed to the accused No.2 and the accused No.2 has informed to the deceased and the deceased has informed to others and in that way, the respondent No.1 has stated about the collection of evidences during investigation. Further, the idea to compel the deceased to commit suicide, is absolutely not there for the petitioner herein. Further, the intention to eliminate the deceased is also not there, and also, not seen, in the conduct of the petitioner herein. Furthermore, the required ingredients to attract the provisions under Section 306 I.P.C., are also, not there in the materials on record, as against the petitioner herein. Further, the respondents cannot tear it, out of context of, certain portions from the statements given by them, to undertake the strong steps, as against the petitioner herein, as it is repeatedly held by the Hon'ble Supreme Court that criminal jurisdiction has to be invoked, with higher responsibility, and also with due record, to the material available on record for the prima facie case, as against the petitioner herein, and it cannot be invoked in a casual manner. Further, the very simple, prima facie case is not at all there, regarding the involvement of the petitioner herein, with regard to the suicide committed by the deceased.
8. Further, the learned senior counsel appearing for the petitioner has relied upon the Judgments, in the typed set of papers, to substantiate the submissions made on behalf of the petitioner herein, wherein the Honourable Supreme Court has clinchingly observed as follows:-
(i) In the decision of the Hon'ble Supreme Court, in Criminal Appeal No.2086 of 2014 dated 13.08.2015, in the case of State of Kerala V. S.Unnikrishnan Nair and others, it is precisely observed as follows:-
?The seminal question that emerges for consideration in this appeal is whether the High Court of Kerala at Ernakulam, is justified in quashing the F.I.R., lodged against the respondents for the offences punishable under Sections 182, 194, 195, 195A and 306 of the Indian Penal Code in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure by the impugned order dated 14th December, 2012.
... Therefore, the central challenge pertains to quashing of the offence punishable under Section 306 I.P.C.
...'Rajan and Unnikrishnan (CBI TVPM) are responsible for my this situation. ... Nobody else has any role in this.
As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents.
That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the Court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank.
Coming to the case at hand, as we have stated earlier, the suicide note really does not state about any continuous conduct of harassment and, in any case, the facts and circumstances are quite different. In such a situation, we are disposed to think that the High Court is justified in quashing the proceedings, for it is an accepted position in law that where no prima facie case is made out against the accused, then the High Court is obliged in law to exercise the jurisdiction under Section 482 of the Code and quash the proceedings.
...But, regard being had to the suicide note and other concomitant facts that have been unfurled, we are compelled to recapitulate the saying that suicide reflects a 'species of fear'. It is a sense of defeat that corrodes the inner soul and destroys the will power and forces one to abandon one's own responsibility. To think of self-annihilation because of something which is disagreeable or intolerable or unbearable, especially in a situation where one is required to perform public duty, has to be regarded as a non-valiant attitude that is scared of the immediate calamity or self-perceived consequence.? (underlined for emphasis) In the present case also, it is seen that there is no prima facie case, as against the petitioner herein, and the allegation is really vague and above all, there is no suicide note of the deceased, from the narration of facts and the material brought on record, in the case, as against the petitioner herein.
(ii) Further, in the decision of the Hon'ble Supreme Court, in Criminal Appeal No.1291 of 2008, dated 17.08.2010, in the case of Madan Mohan Singh V. State of Gujarat & another, it is significantly observed as follows:-
? The accused who faces prosecution for offences under Section 306 and 294(b) of the Indian Penal Code (IPC) comes up before us, being aggrieved by the High Court Judgment by which his petition under Section 482 Cr.P.C., was dismissed. In that petition the accused/appellant had challenged the First Information Report(FIR) registered as C.R.No.166 of 2008 at Naranpura Police Station.
She then complained that Madan Mohan Singh used to tell his private errands to her husband and was harassing him. Though Madan Mohan Singh was transferred, yet he kept on continuously using her husband.
...I am going to commit suicide due to his functioning style. Alone M.M.Singh, D.E.T. Microwave Project is responsible for my death. I pray humbly to the officers of the department that you should not co-operate as human being to defend M.M.Singh. M.M.Singh has acted in breach of discipline disregarding the norms of discipline.
... We are convinced that there is absolutely nothing in this suicide note or the F.I.R which would even distantly be viewed as an offence much less under Section 306 I.P.C. We could not find anything in the F.I.R 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 has 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. In spite of our best efforts and microscopic examination of the suicide note and the F.I.R., 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. ... In order to bring out an offence under Section 306 I.P.C., specific abetment as contemplated by Section 107 I.P.C., 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 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 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 or irrelevant nature. In the similar circumstances, as reported in Netai Dutta V. State of W.B. (2005 (2) SCC 659), this Court had quashed the proceedings initiated against the accused.
...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 F.I.R 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.
...In so far as Section 294(b)I.P.C., is concerned, we could not find a single word in the F.I.R., or even in the so-called suicide note. Insofar as Section 306 I.P.C., is concerned, even at the cost of repetition, we may say that merely because a person had a grudge against his superior officer and committed suicide on account of that grudge, even honestly feeling that he was wronged, it would still not be a proper allegation for basing the charge under Section 306 I.P.C. It will still fall short of a proper allegation. ... We have not been able to find anything. Under such circumstances, where the F.I.R., itself does not have any material or is not capable of being viewed as having material for offence under Sections 306 and 294(b) I.P.C., as per the law laid down by this Court in State of Haryana & ors. V. Bhajan Lal & others (1992 Suppl. 1 SCC 335), it would be only proper to quash the F.I.R., and the further proceedings.
For all these reasons, we are of the clear opinion that the High Court erred in not quashing the proceedings. Allowing this appeal, we set aside the order of the High Court and allowing the petition under Section 482 Cr.P.C., filed by the appellant/accused.(underlined for emphasis) In the present matter also, it is seen that there is no materials on record available to bring out the intention of the petitioner, prima facie, regarding the suicide of the said deceased and there is absolutely nothing in the F.I.R., or other material brought on record, that the petitioner herein has instigated the deceased to commit suicide, and the Court has to be extremely careful, to ask the petitioner herein to face the criminal trial, as the criminal trial is not exactly a pleasant experience.
(iii) Further, in the decision of Hon'ble Supreme Court in Criminal Appeal No.611 of 2011, dated 01.03.2011 in the case of M.Mohan V. The Deputy Superintendent of Police, it is specifically pointed out as follows:-
? Mahalinga Nadar
---------------------------------------------------------------
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Son(A-1) Son(A-2) Son(A-4)
Anandraj M.Mohan Velmurugan
Husband of married to
deceased Easwari(A-3)
Kamatchi
The appellants also submitted that there is no material on record to proceed against the appellants for an offence punishable under Section 306 I.P.C. No conviction can be recorded in absence of legal evidence. According to the appellants, any further proceedings in this case will be an abuse of the process. According to them, this is a fit case warranting interference by this Court.
The appellants submitted that the summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegations made in the complaint and the evidence, both oral and documentary, in support thereof and would that be sufficient for the complainant to succeed in bringing home the charge against the accused? It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before the summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to point out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
The appellants submitted that the prosecution must produce evidence before the Court, which is capable of being converted into legal evidence after the charges are framed. In this case admittedly, there is no legal evidence connecting the appellants with any crime, much less the offences alleged, as the materials are not capable of being converted into legal evidence. Hence, in the absence of any material which can be converted into legal evidence, the proceedings as against the appellants under Section 306 I.P.C., are also liable to be quashed.
The word 'suicide' in itself is nowhere defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self-killing.? (underlined for emphasis) In the case on hand also, it is seen that there is no material available on record, which can be converted into legal evidence, as the summoning of the petitioner herein, in a criminal case in a serious matter and the criminal law cannot be set into motion, as a matter of course, and as rightly pointed out by the learned State Public Prosecutor, by notice dated 16.12.2015, the learned Judicial Magistrate No.I, Tirunelveli, has clearly stated that the case has been filed as against the petitioner herein, cannot be taken into file by the said Court and submitted the entire records of P.R.C.No.40 of 2015 to the Special Court for Trial of Cases under the Vigilance and Anti Corruption Act, Tirunelveli, and the said learned Magistrate before summoning the petitioner herein, has not applied his mind to the facts of the case and the law applicable thereto and also, not examined the sufficiency of the material brought on record, to succeed in bringing home the criminal case proceeding against the petitioner, herein.
(iv) Furthermore, in the decision of Honourable Supreme Court, in Criminal Appeal No.1301 of 2002, dated 05.01.2010, in the case of Gangula Mohan Reddy V. State of Andhra Pradesh, it is detailedly observed as follows:-
?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.
The intention of the Legislature and the ratio of the cases decided by this Court 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 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.? (underlined for emphasis) In the present case also, it is seen that there is no evidence or material brought on record, with regard to the positive act on the part of the petitioner herein, for committing suicide, by the deceased, and there is also no mens rea for the petitioner, to instigate the deceased to commit suicide.
(v) Further, in the case reported in MANU/SC/0447/1993, (Sampat Singh and others V. State of Haryana and others), it is expressly pointed out by the Honourable Supreme Court as follows:-
?Needless to say, it is not for a Court to keep track of an investigation and watch its day to day progress but, of course, when an investigation culminates into a final report as contemplated under Section 173 of Cr.P.C., then the competent Court enjoins a duty within its authority sanctioned by law to scrupulously scrutinise the final report and the accompaniments by applying its judicial mind and take a decision either to accept or reject the final report.? (underlined for emphasis) In the present matter also, it is seen that the second First Information Report has been filed on 08.03.2015, by the first respondent and later, the final report dated 01.09.2015 has been filed and also, the same has been filed, as against the petitioner herein, without the prima facie cases, so as to accept the said final report.
(vi) Also, in the case in criminal Appeal No.1454 of 2013, dated 17-09-2013 (Ajoy Acharya V. State Bureau of Investigation against Eco. Offences), it is specifically held by the Honourable Supreme Court, as follows:-
?This Court issued notice in the above matter (as also in a connected matter i.e., Special Leave to Appeal (Criminal) No.400 of 2012) on 6.1.2012. While issuing notice, an interim order came to be passed on 06.01.2012, staying proceedings before the Special Judge, Bhopal (in Special Case No.7 of 2007).?
(vii) Further, in the case reported in (2009) 13 SCC 80 (Bhairon Singh V. State of Madhya Pradesh), it is significantly held as follows:-
?The legal position relating to the admissibility of evidence under Section 32(1) has come up for consideration before this Court time and again. It is not necessary to multiply the authorities in this regard as reference to a three-Judge Bench decision of this Court in Sharad Birdhichand Sarda V. State of Maharashtra (1984) 4 SCC 116; 1986 SCC (cri.) 487,will suffice. Regarding the application of the rule under Section 32(1) of the Evidence Act, Fazal Ali, J, culled out the legal position as follows:- (SCC pp. 138- 39, para 21) 'Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.? (underlined for emphasis) In the case on hand also, it is seen that there is no prima facie material brought on record, with regard to the cause of death, with the relevant and admissible statement of the deceased.
(viii) Furthermore, in the case reported in (2008) 5 SCC 597 (Vinay D.Nagar V. State of Rajasthan), it is expressly pointed out as follows:-
?The High Court was of the view that from the aforesaid circumstances an inference can be drawn towards the appellant's guilt. All the aforementioned circumstances taken cumulatively have formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else. Hence, the appeal was dismissed by the High Court.
It is urged by Shri.U.U.Lalit, learned Senior Counsel for the appellant that the appellant's conviction is based on circumstantial evidence. The prosecution has relied upon the statement made by the deceased Kalu under Section 161 Cr.P.C., to prove the motive for commission of the crime. As per the learned Senior Counsel, the statement of Kalu under Section 161 Cr.P.C., read with Section 32 of the Evidence Act, 1872, is not admissible and thus the Courts below have committed an error in relying on the statement made by the deceased Kalu under Section 161 Cr.P.C., for the alleged motive of the appellant to commit the crime. It is further urged that the prosecution has completely failed to prove the chain of circumstances which should point to the guilt of the accused and none else.
The principle of law is well established that where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
It is urged by the learned Senior Counsel that the statement recorded by the police under Section 161 Cr.P.C., of the deceased in abduction case is not admissible under Section 162 Cr.P.C., and therefore, the prosecution could not have relied upon the statement of the deceased Kalu recorded by the police.
...Then the next step would be to see as to under which provision of the Evidence Act, the same shall be admissible. According to the learned Senior Counsel, the statement of a person who is not alive for the purpose of cross-examination in case need arises, would be admissible only if it falls within the four corners of Section 32 of the Evidence Act.
...So, the question is whether the statement made by deceased Kalu under Section 161 Cr.P.C., in previous investigation would be admissible as per the second part of Section 32 (1) of the Evidence Act which says that the statement made by a person as to the ?circumstances of the transaction which resulted in his death?would be admissible and whether the deceased's statement under Section 161 Cr.P.C., falls under 'circumstances of the transaction which resulted in his death'.
In Pakala Narayana Swami V. Experor(AIR 1939 PC 47) it was held that a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction.
We have analysed the statement of the deceased Kalu made to the police under Section 161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr.P.C., for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the appellant.? (underlined for emphasis) In the present case also, it is seen that the materials brought on record, have no valid or remote connection or reference, to the death of the deceased, by committing suicide and also, for the motive for the petitioner for the death of the deceased, by committing suicide.
ix) Furthermore, in the case reported in (2014)11 SCC 724, (State V. Jitender Kumar Singh), it is clinchingly observed as follows:-
?The following offences would come within the scope of Section 3(1) of the Prevention of Corruption Act, 1988 (PC Act):-
(i) Any offence punishable under the PC Act;
(ii) Any conspiracy to commit any offence punishable under the PC Act;
(iii) Any attempt to commit any offence punishable under the PC Act;
(iv) Any abetment of any offence punishable under the PC Act.
A Special Judge appointed under Section 3(1) of the PC Act has got jurisdiction to proceed exclusively against a public servant and exclusively against a non-public servant as well, depending upon the nature of the offence referred to in Chapter III of the PC Act. Junction of a public servant is not a must for the Special Judge to proceed against a non-public servant for any offence alleged to have been committed by him under Chapter III of the PC Act. As already indicated, an offence under Section 8 or Section 9 can be committed by a non-public servant and he can be proceeded against under the PC Act without joinder of any public servant.
It is thus clear that an offence under PC Act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of Section 4(1) of the PC Act, read with Section 3(1) thereof, such offences can be tried only by a Special Judge.
Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non-PC offences, depending upon the facts of the case. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in the array of parties, can the Special Judge proceed against private persons who have committed offences punishable under the PC Act.? (underlined for emphasis) In the present case also, it is clear as crystal that there is no prima facie material brought on record and also the above mentioned citations submitted by the learned Senior Counsel appearing for the petitioner, are factually and also legally, applicable to the present case of the petitioner herein.
9. Further, the learned Public Prosecutor appearing for the first respondent has pointed out that the direct evidence is available to connect the nexus between the suicide committed by the deceased and also the petitioner herein. Further, the learned State Public Prosecutor appearing for the first respondent has stated that the second respondent, namely, Saraswathy, the wife of the deceased Muthukumarasamy, has given a statement that prior to the death of the deceased, the deceased has informed to her about the trouble in the appointment of drivers and as per the provisions and Section 32 of Indian Evidence Act, the statement of the deceased, prior to death, as to the circumstances, in which resulted in his death, is admissible.
10. However, the said Saraswathy has stated in her first complaint lodged before the Sub Inspector of Police, Tirunelveli Railway Protection Police Station, immediately, after the suicide committed by the deceased on 20.02.2015 at 13.30 p.m., that she has seen the dead body of her husband, in the Railway accident and the case has been filed only under Section 174 Cr.P.C., (Police to inquire and report on suicide, etc.,) in crime No.44 of 2015. Further, in the said complaint itself, the second respondent has clearly admitted that her husband, namely, the deceased Muthukumarasamy has served as Assistant Executive Engineer, in Agricultural Department and they have got two sons. Hence, it is found that the deceased is a well qualified person of 57 years of age, and also, well employed Government Engineer and also having a good family members and also, in matured state of mind. Even, in Section 161(3) Cr.P.C., statement, P.W.1 (the second respondent) has stated to her that her husband has stated that in the office, there is certain small problem, in the office. Further, it is pertinent to point out that after receipt of notice of hearing about the present case, the second respondent has not appeared before the Court through counsel or in person, on that ground also, it is seen that no useful purpose will be served, by keeping the criminal proceedings taken, as against the petitioner, unnecessarily and also, there is glaring absence of prima facie case, as against the petitioner herein.
11. Further, in the citations submitted on behalf of the first respondent, by the learned State Public Prosecutor, it is observed as follows:-
i) In the case reported in (2000)5 SCC 207 (Kans Raj V. State of Punjab and others), it is held as follows:-
?... The words 'as to any of the circumstances of the transaction which resulted in his death' appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction.? (underlined for emphasis) However, in the present case, it is seen from the records that there is no circumstances of the transaction, so as to sufficiently or closely connect actual transaction, relating to the cause of the death of the deceased, with that of the petitioner herein.
ii) Further, in the Judgment pointed out the learned State Public Prosecutor, reported in (2012) 9 SCC 460 (Amit Kapoor V. Ramesh Chander and another), it is observed as follows:-
?The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.? (underlined for emphasis) In the present case also, it is not visible that the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and the basic ingredients of the criminal offence, are not satisfied and this Court has to interfere, in so far as the petitioner herein, is concerned, to meet the ends of justice, and hence, this Court has to interfere with the power of quashing the criminal proceedings taken as against the petitioner herein.
iii) Further, in the citation relied upon on behalf of the first repsondent, by the learned State Public Prosecutor, reported in (2012) 9 SCC 734 (Praveen Pradhan V. State of Uttaranchal and another), it is stated as follows:-
? Ss.306 and 107 ? Abetment of suicide- ... Suicide note corroborated by statements of family members of deceased.
...Deceased was a qualified graduate engineer and as per suicide note still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by appellant, upon non- fulfilment of which, he would be mercilessly harassed by appellant for a prolonged period of time - ... Such harassment, coupled with utterance of words to effect, that, 'had there been any other person in his place, he would have certainly committed suicide.' ... A continued course of conduct which creates such circumstances that deceased was left with no other option but to commit suicide, held, would satisfy ingredients of instigation to commit suicide or abetment of suicide.
... The accused had never intended for the deceased employed under him to commit suicide.
... instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'.
Thus, to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. The dictionary meaning of the word 'goad' is 'a thing that stimulates someone into action; provoke to action or reaction' .... to keep irritating or annoying somebody until he reacts..
... More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.? (underlined for emphasis) However, in the present case, it is noticeable from the material records brought on record, that the deceased, a qualified Government Engineer- Muthukumarasamy has not left, any suicide note and also he has not been left, with no other option, but, to commit suicide and also, the petitioner has never instigated for the deceased Muthukumarasamy to commit suicide or abetment of suicide. Further, for the instigation to commit suicide also, the prima facie case has not been made out, as against the petitioner herein. Further, in the present case, it is found that there is no prima facie case, so as to connect the petitioner herein, regarding the suicide committed by the deceased.
iv) Further, in the case reported in (2010) 9 SCC 64 (Amar Singh V. State of Rajasthan), it is observed as follows:-
?Presumption as to dowry death ? When arises ? Prosecution proving that soon before her death deceased had been subjected by appellant to taunts in connection with demand for dowry? (underlined for emphasis) On the perusal of the above mentioned citation, it is seen that presumption as to dowry death has been discussed and even in that citation, it has been held that there is no evidence as to the actual role played by appellant husband in death of deceased. Also, in the present case on hand, there is no prima facie case, regarding the actual role played by the petitioner herein, for the suicide committed by the deceased. Further, on the perusal of another Judgment submitted on behalf of the first respondent, by the learned State Public Prosecutor, reported in (2000) 5 SCC 207 ( Kans Raj V. State of Punjab and others) it is seen that the said case related to the dowry death and whereas the present case is related to the suicide committed by the deceased (Assistant Executive Engineer), a well qualified Engineer with 57 years of age, and matured Government Engineer, with a good family members.
v) In the case reported in MANU/KA/3501/2015 (R.Shankar and others V. L.J. Malathi and others), it has been clearly pointed out that the materials on record, are only to be considered to form prima facie case, and also, it is held as follows:-
?In M/s. Pepsi Foods Ltd., & another V. Special Judicial Magistrate & others, reported in MANU/SC/1090/1998 : AIR 1998 SC 128(1), the Hon'ble Supreme Court observed in Para ? 28 as follows:-
Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
The learned Magistrate has very casually exercised the power under Sections 190, 200 and 202 of the Code of Criminal Precedure and has acted in direct contravention of mandatory provisions of law, rendering the order taking cognizance illegal. ... Therefore, the materials on record are only to be considered to form an opinion as to the prima facie case. ... When the allegations do not constitute the offences alleged, it is the duty of this Court to interfere and exercise power under Section 482 of the Code of Criminal Procedure to prevent abuse of process of the Court and to secure ends of justice. Criminal Prosecution cannot be permitted to sort out other things. In the circumstances, I am of the view that this is a case where power under Section 482 of the Code of Criminal Procedure has to be exercised and proceedings before the Court below are to be quashed.
In the result, these are allowed. The proceedings in C.C.No.51188/ 2013 (PCR No.195/2011) pending on the file of XI Additional Chief Metropolitan Magistrate, Bangalore is hereby quashed so far as the petitioners are concerned.?(underlined for emphasis) In the present case on hand also, it is found that the proceedings before the Court below are to be quashed, as against the petitioner herein, due to the glaring absence of prima facie case, with regard to the offences alleged and it is the duty of the Court to interfere and exercise power under Section 482 Cr.P.C., to prevent abuse of the process of the Court and also, to secure the ends of justice.
vi) Furthermore, in the case reported in (1993) 1 SCC 561, (Sampat Singh and others V. State of Haryana and others), it is observed as follows:-
?We think it is not necessary to expatiate the proposition of law in this regard but suffice to refer to the decision in A.R.Antulay V. R.S.Nayak[(1988) 2 SCC 602: 1988 SCC(Cri) 372: 1988 Supp (1) Scr 1] wherein at page 44, the following dictum is laid down: (SCC p.644, para 24) 'Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under Section 6(1) of the said Act. The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only.' In the light of the above observation, it was necessary for the Magistrate to have sent the final report to the Special Court which is alone competent to try the case.? (underlined for emphasis) However, for the above mentioned reasons, and also, as per the various principles pointed out in the above mentioned citations, it is found that there is no prima facie case, to take criminal proceedings, as against the petitioner herein. Further, the ultimate aim is to find out the truth, and to punish the guilty and to protect the innocent.
12. Further, it has been pointed out, on behalf of the first respondent that the deceased has applied for loan of Rs.6 lakhs, from General Provident Fund Account, to meet the demand of the amounts sought for and for further, sum, he has requested from his friend, namely, Ashokkumar. However, no relevant records, as per the General Provident Fund (Tamil Nadu) Rules, so as to get the huge amount of Rs.6,00,000/- from General Provident Fund of the said Muthukumarasamy, as mentioned by the said Ashokkumar has been brought on record. Further, P.Subramaniam has stated in Section 161 of Cr.P.C., statement that he has seen the deceased in disturbed state of mind and weeping. However, it cannot be taken as a prima facie material, so as to connect the petitioner herein, for the suicide committed by the deceased. Because the petitioner herein, certainly, will not get any mandatory benefit by the suicide committed by the deceased. Further, the said P.Subramanian has clearly stated that on 17.02.2015 itself, the appointment orders have been sent by Registered Post with acknowledgement due. However, only on 20.02.2015, the deceased has committed suicide, as per the Complaint lodged by the second respondent herein, on 20.02.2015, at 13.30 p.m., to the police and the case in Crime No.44 of 2015 under Section 174 Cr.P.C.,(police to inquire and report on suicide etc.,) alone has been filed.
13. Further, on a perusal of the materials available on record, it is seen that there is no slight material brought on record, regarding the involvement of the petitioner/accused No.1, and also, it is seen that the petitioner has no remote connection for the suicide committed by the deceased. Further, it is the statement given to the respondent that some one heard about the occurrence or the demand of the money and even that hearsay evidence is also not the direct hearsay evidence. Further, the very pertinent point, involved in this matter is, immediately, after the death of the deceased Muthukumarasamy, the case has been filed only under Section 174 Cr.P.C., (Police to inquire and report on suicide, etc.,) on 20.02.2015, at 13.30 p.m., and thereafter, only, on 04.04.2015, Section Alteration Report, has been filed. However, it is seen that there is no prima facie case, with regard to the positive act on the part of the petitioner herein, for committing suicide by the said deceased, and also, there is no means rea for the petitioner herein, to instigate the deceased to commit suicide. Further, it is relevant to point out that by the suicide committed by the deceased, the alleged demand of money, itself, could not be achieved.
14. Further, it is seen that the deceased admittedly, has served as Assistant Executive Engineer and also, in charge of Executive Engineer in the Agricultural Engineering Department, Tirunelveli, Tamil Nadu and also, he is a Government Engineer with 57 years of age, and well placed and also, a well matured Government Engineer. Furthermore, there is no direct nexus, even prima facie, to proceed against the petitioner herein, for the unnatural death / suicide committed by the deceased. Further, in order to attract the provisions of Section 306 I.P.C., the intention of the petitioner is an important factor, and there should be no legal presumption to connect the petitioner, with the suicide of the deceased. Further, the learned Senior Counsel appearing for the petitioner herein, has repeatedly contended that there is no prima facie case, as against the petitioner herein, in the materials brought on record, and no useful or fruitful purpose will be served, by making the petitioner, herein, to face the trial as the summoning of the petitioner in a criminal case itself, in a serious matter.
15. Further, it is also useful to refer the following Judgements:-
a) Further, in the case reported in (1980) 4 SCC 425 (Marudanal Augusti V. State of Kerala), it is precisely held as follows:-
?The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.? (underlined for emphasis) Further, for the very same point reported in 2009 (2) MLJ 931 (Sivagami V. State), it is distinctly pointed out as follows:-
?The entire fabric of the prosecution case would collapse if the First Information Report is held to be a fabricated or brought into existence long after the occurrence.? (underlined for emphasis)
b) Also, in the case reported in 2000(1) Cri.L.J.401 (Sobithraj V. State), it is specifically held as follows:-
?FIR ? An extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial ? Its importance cannot be underestimated from the stand point of the accused.
FIR ? Delay in lodging ? It often results in embellishment which is a creature of afterthought and there may be danger of introduction of a coloured version, exaggerated account or a concocted story as a result of deliberation and consultation.?(underlined for emphasis)
c) Further, in the case reported in 1994 Supp (2) SCC 372 (Arjun Marik and others V. State of Bihar), it is significantly observed as follows:-
?Criminal Procedure Code 1973 ? S.157 ? requirement of sending FIR to the Magistrate forthwith ? Object of ? Meaning of the expression ?forthwith?- Effect of delay in despatch of F.IR ? On facts and in the circumstances delay in sending F.I.R., leads to the conclusion that the Fard-beyan and F.I.R., had been recorded much later than one as shown in the said document.?
d) Furthermore, in the case reported in (2009) 2 MLJ (Cri.) 1030, (N.S.Rama Rao V. State), it is specifically held as follows:-
?... The Court taking into consideration of the above said relevant facts and keeping in mind the principles laid down in the above decisions is of the opinion that the continuance of the proceedings against the petitioner would clearly amount to abuse of process of Court and would definitely result in miscarriage of justice and hence, the F.I.R., in so far as he is concerned is liable to be quashed.? (underlined for emphasis) From the principles mentioned in the above said citations it is clear as crystal, that there is no prima facie case, as against the petitioner herein and also, no useful purpose will be served by the continuance of the proceedings, as against the petitioner and also, the continuance of the proceedings, as against the petitioner, would clearly amount to abuse of process of the Court and would definitely result in miscarriage of justice.
e) Furthermore, in the case reported in CDJ 2012 SC 675-
2010(10)SCC 517, (Manharibhai Muljibhai Kakadia & another V. Shailesbhai Mohanbhai Patel & others), it is significantly held as follows:-
?Section 202 of the Code has twin objects; One, to enable Magistrate to scrutinize carefully the allegations made in the plaint with a view to prevent a person named therein as accused being called upon to face an unnecessary, frivolous or merit less plaint and the other, to find out whether there is some material support the allegations made in the complaint. The Magistrate has duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made.? (underlined for emphasis) In the present case also, it is apparent that the petitioner herein has been called upon to face an unnecessary or merit-less criminal proceedings and also, there is no prima facie case, as against the petitioner herein.
16. Further, on a perusal of the materials on record, it is seen that there is no prima facie materials to connect the petitioner with the suicide of the deceased. On the face of record available in the matter, it is seen that the petitioner is not involved in the alleged offence and there is no prima facie material, to establish the same. Furthermore, there is no intention for the petitioner also, to make the deceased to take the extreme step, by jumping before the train and committing suicide. Certainly, there are no prima facie materials to infer about the involvement of the petitioner and there is no prima facie case, as against the petitioner, for the suicide committed by the deceased. Further, the minimum safe guards available to the petitioner herein, as against the possibilities of false involvement, prima facie has not been satisfied, by the respondent, by collecting relevant materials. Further, this Court has to peruse the materials available on record and to give the prudent conclusion, as mentioned in the provisions of Section 3 of the Indian Evidence Act. Further, on a perusal of the entire materials available on record, it is found that there is no prima facie, with regard to the alleged involvement of the petitioner herein, for the suicide committed by the deceased Muthukumarasamy. Further, it is seen that there is no clear, credible, reliable and trustworthy materials brought on record, with regard to the prima facie case, as against the petitioner herein. Further, there is no positive material to accept that the petitioner herein is prima facie involved in the suicide committed by the deceased. Furthermore, there is no strong motive for the petitioner herein, for the suicide committed by the deceased. Further, the deceased person is a highly educated, matured and holding a dignified post in the Government service. Further, it is seen from the materials on record that there is no prima facie or foundation for the prosecution to proceed with the case, as against the petitioner herein and the entire case, as against the petitioner is not sustainable. Further, no motive has been stated in any of the records, regarding, the involvement of the petitioner herein, with the suicide committed by the deceased. Only on assumptions and presumptions of the respondents, criminal proceeding cannot be taken, as against the petitioner herein.
17. In fact, this Court has sent notice of hearing to the second respondent, who is the Defacto Complainant, for the first F.I.R., lodged, with regard to the suicide committed by the deceased Muthukumarasamy and also, based upon the said Complaint only the first F.I.R., under Section 174 Cr.P.C.,(Police to inquire and report on suicide etc.,), has been filed by the Railway Protection Police Station and the first respondent has filed the second F.I.R. However, the second respondent has not contested the petition filed by the petitioner, on merits. Hence, on this ground also, it is seen that no useful purpose will be achieved by continuing the proceedings as against the petitioner, without any prima facie case.
18. Further, the defacto complainant has not specifically stated about the involvement of the petitioner herein, regarding the suicide committed by the deceased in the material records and there is no indication that the petitioner herein is responsible for the suicide committed by the deceased. Again the details of the demand, offer, and acceptance of illegal gratifications by the petitioner herein, has to be inferred from the materials available on record, which are very much necessary to set the law in motion. Without the said details and particulars and nature of involvement of the petitioner herein, for the suicide committed by the deceased, it is impossible to initiate the prosecution, as against the petitioner herein and the prima facie case details have not been revealed by the respondents, in spite of the persistent efforts taken by the Court. Even, the allegations made against the petitioner herein, do not have the date, period and other details and descriptions of the things demanded by the petitioner herein, from the deceased and without the said details, the prosecution could not be lodged by the respondent herein, as against the petitioner herein. Further, it is to be mentioned here that this Court has given its almost and sincere opportunities, to the respondents, to reveal the necessary details to prosecute the petitioner herein, for the suicide committed by the deceased. It would not be out of place to mention that the respondents have improved or bettered or advanced or developed the materials on record, though, there is glaring absence of prima facie case, as against the petitioner and also, for want of essential ingredients, the prosecution could not be proceeded further, with regard to the petitioner herein.
19. Further, it is to be noted that the Court has taken the efforts, to understand the intention of the petitioner herein, for the suicide committed by the deceased, and the same has not been, even, remotely or prima faciely established by the respondent, regarding the involvement of the petitioner herein. In the present case of the petitioner herein, no suicide note has been filed and also, there are no prima facie case to establish the allegation made against the petitioner herein. Further, it is to be observed by this Court that most of the offences alleged to have been committed by the petitioner herein, carry stringent punishment and therefore, the prescribed procedures under the criminal jurisprudence has to be meticulously followed and there are the safeguards available to the petitioner herein, as against the possibility of the involvement in the criminal proceedings. Further, the involvement of the petitioner in the allegation is not clear and ambiguous. Further, on a mere perusal of the materials available on record, it is found that there is no prima facie case, as against the petitioner herein, in order to take criminal proceedings, as against the petitioner herein, as per the criminal jurisprudence. Further, on a perusal of materials available on record, it is seen that substantial provisions and also, procedural provisions, mentioned in the criminal jurisprudence have not been followed, so as to take appropriate and relevant criminal proceedings, as against the petitioner herein. Further, the respondent has to prove his own case and it cannot shift the burden on the petitioner herein. Further, it is a rule of caution, that this Court would generally look for prima facie case, to initiate the criminal proceedings, as against the petitioner herein. Further, it is also well settled law that the motive aspect would play a vital role in the circumstantial evidence case and in the present matter also, the respondent has utterly failed to establish the motive aspect, regarding the intention of the petitioner herein, to cause sudden death of the deceased. Further, no proximate cause has been, prima facie, shown that the petitioner is responsible for the suicide committed by the deceased. This Court has to act within legal frame work only and the paramount consideration of the Court is that the justice has to win. Further, the various grounds taken on behalf of the petitioner herein by the learned Senior Counsel are found to be worthy of acceptance for the above mentioned reasons and citations. Also, the materials available on record, prima facie do not inspire any confidence to take criminal proceedings, as against the petitioner herein.
20. Further, the first respondent has to be guided by the provisions of law and also based upon the materials available on record only and also, to consider the issues, in accordance with law only, and the first respondent is not to be carried away, by the scurrilous attacks made on the petitioner herein, without any basis, and the first respondent has to deal with the matter, independently and also to act, in accordance with the principles of Criminal Jurisprudence only.
21. Further, a few bits here and a few bits there, on which the prosecution relies cannot be held to be adequate for the prima facie case, connecting the petitioner herein, with the commission of the crime, as clearly held in the case of Esher Singh V. State of A.P., reported in (2004) 11 SCC 585 at para 38. Further, this Court is finding, the substantial and compelling reasons to interfere with the proceedings taken, as against the petitioner herein. Further, there are good, sufficient and cogent reasons and also, strong reasons to interfere with the Trial Court proceedings. Further, the first respondent has not satisfied this Court, as to fact of a prima facie case, as against the petitioner herein. Therefore, the quashing of the proceedings, as against the petitioner herein, on the facts of the present case has to be done, to secure the ends of justice.
22. The exercise of power, under the provisions of Section 482 of Cr.P.C., contemplates three circumstances, under which the said inherent jurisdiction might to be exercised, namely i to iii.
1. to give effect on the order of the Court.
2. to prevent the abuse of process of the Court.
3. to secure the ends of justice.
In the present case also, it is found that the petitioner is entitled to get relief as prayed for the various reasons and citations as pointed out herein above and also, for the above mentioned facts and circumstances.
23. Further, the learned senior counsel for the petitioner has pointed out that the petitioner is not at all connected with the allegation and this case would not serve any useful purpose in future and at the same time, it would deteriorate the cordial status of the petitioner herein, with the society. Further, as per the above mentioned settled propositions of law, this Court should not keep the case pending further, without any serious useful purpose. Further, this Court is conscious about the said proposition of Law. The petitioner has submitted the detailed and evaluated reasons and grounds in the petition, so as to quash the proceedings. For the above mentioned circumstances, it is found that the petitioner is entitled to get relief, for the reasons and grounds stated in the present petition, particularly, for the reason, that there is no prima facie case from the material brought on record, by the first respondent, as against the petitioner herein. Lastly, the Registry is directed to send back the material records received from the Court below, to the concerned Court, forthwith.
24. In the result, the present petition is allowed and the case proceedings, in P.R.C.No.40 of 2015, before the Court below, is hereby quashed, so far as the petitioner herein, is concerned.
To
1. The Judicial Magistrate No.I, Tirunelveli.
2. The Deputy Superintendent of Police, Crime Branch CID., Metro-II, Egmore, Chennai ? 600 008.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .