Kerala High Court
Gajendran vs The State Of Kerala on 27 August, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938
Crl.MC.No. 3371 of 2016 ()
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CP.NO.35/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE.
CRIME NO. 642/2010 OF CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT.
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PETITIONER/1ST ACCUSED:
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GAJENDRAN, S/O. ACHUTHAN,
AGED 52 YEARS, RESIDING AT MAKKOLATH HOUSE,
GURUVAYURAPPAN COLLEGE P.O.,
KOZHIKODE DISTRICT.
BY ADVS.SRI.T.MADHU,
SRI.M.RAGHUKUMAR.
RESPONDENT/STATE:
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1. THE STATE OF KERALA,
THROUGH THE STATION HOUSE OFFICER,
CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM- 682 031.
2. NIJI, D/O.IMPICHIKUTTY,
PARAKKULATHIL HOUSE,
MARIKUNNU P.O., KOZHIKODE DISTRICT- 673 012.
R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06-06-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
rs.
Crl.MC.No. 3371 of 2016
APPENDIX
PETITIONER'S ANNEXURES:-
A1 THE TRUE COPY OF THE FINAL REPORT FILED BY THE
1ST RESPONDENT IN CRIME NO.642/2010 OF CHEVAYOOR
POLICE STATION BEFORE THE SUB-DIVISIONAL MAGISTRATE'S
COURT, KOZHIKODE DATED 27/08/2011.
A2 THE TRUE CERTIFICATE COPY OF THE PRIVATE CRIMINAL
COMPLAINT IN C.M.P NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
A3 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW1
DATED 21/05/2013 IN C.M.P NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT -I,
KOZHIKODE.
A4 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW2
DATED 21/05/2013 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
A5 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW3
DATED 04/10/2013 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
A6 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW4
DATED 04/10/2013 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT -I,
KOZHIKODE.
A7 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW5
DATED 16/01/2014 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
A8 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW6
DATED 23/01/2015 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
A9 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW7
DATED 27/02/2015 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I,
KOZHIKODE.
....2/-
Crl.MC.No. 3371 of 2016
A10 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW8
DATED 03/09/2015 IN CMP NO.576/2013 ON THE FILES OF THE
LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT I,
KOZHIKODE
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
RAJA VIJAYARAGHAVAN.V., J
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Crl.M.C. No. 3371 of 2016
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Dated 6th June, 2016
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ORDER
Suresh Babu, the husband of the 2nd respondent herein committed suicide by hanging on 3.12.2010. In respect of the above incident, crime No.642 of 2010 of Chevayoor Police Station was registered under the caption 'unnatural death'. Investigation revealed that aforesaid Suresh Babu was having illicit relationship with one Sheeba, the wife of the petitioner herein. Autopsy conducted revealed that the cause of death was hanging.
2. Investigation was conducted by the Sub Inspector if Police, Chevayoor and on its conclusion Annexure A1 report, was submitted before the Sub Divisional Magistrate, Kozhikode, closing the above matter.
3. Aggrieved by the above, the 2nd respondent filed a complaint before the learned Magistrate implicating the petitioner, his wife and a relative of the petitioner. The Cri.M.C. No.3371 of 2016 -2- learned Magistrate examined the complainant and the witnesses and concluded that sufficient grounds were made out for proceeding against the accused for the offence punishable under Section 306 read with Section 34 of the IPC.
4. On receipt of summons from the learned Magistrate who initiated committal proceedings, the petitioner has filed this petition under Section 482 of the Code of Criminal Procedure seeking to quash the proceedings on the ground that the ingredients of Section 306 of the IPC is not attracted in the facts and circumstances.
5. I have heard the learned Public Prosecutor as well.
6. It is submitted by the learned counsel that for constituting offence under Section 306 of the IPC, the prosecution should have a definite case that there was abetment within the meaning of Section 107 of the IPC. No such allegations are there, either in the complaint or in the statement of the witnesses. It is further submitted by the learned counsel that it is borne out from the investigation Cri.M.C. No.3371 of 2016 -3- conducted by the police that the deceased was having an illicit affair with the 2nd accused and it was being disgraced by the above fact that Suresh Babu had decided to end his life.
7. The learned counsel placing reliance on the judgment of the Apex Court in Amit Kapoor v. Ramesh Chander [2012 (9) SCC 460] and that of this Court in Mohandas @ Mohan v. State of Kerala (2013 KHC 330) contended that, in order to attract the offence under Section 306 of the IPC, there should be an intentional act from the part of the accused either directly or indirectly. It is also submitted by the learned counsel referring to the decision of the Apex Court in Mohan v. State (2011 (3) SCC 626) that, in order to bring home the finding of guilt against a person who is an accused having committed offence under Section 306 of the IPC, there has to be a clear mens rea and an active act which led the deceased to commit suicide. It was argued that the word Instigation means is to goad, urge forward, provoke, incite or encourage to do 'an act'. To Cri.M.C. No.3371 of 2016 -4- satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. According to the learned Counsel, the present case is not one where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred.
8. The learned Public Prosecutor refuted the contention of the learned counsel and submitted that the learned Magistrate had examined not less than 8 witnesses to come to a conclusion that sufficient grounds were made out for proceeding against the accused. It is further submitted that this Court will not be justified in exercising powers under Section 482 of the Code of Criminal Procedure when the petitioner has a remedy by approaching the Cri.M.C. No.3371 of 2016 -5- Sessions Court by filing a petition for discharge. The prosecution materials will be available before Sessions Court and the Sessions Court will be in a better capacity to analyze the materials and to conclude whether the offence under Section 306 of the IPC is actually made out or not.
9. I find merit in the submissions of the learned Public Prosecutor.
10. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. By and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while Cri.M.C. No.3371 of 2016 -6- giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court.
11. This Court in exercise of powers under Section 482 of the Code of Criminal Procedure will not be justified in analyzing the statement of the witnesses which was relied on by the learned Magistrate to conclude that sufficient grounds were made out to proceed against the petitioner.
12. Having regard to the facts, I am of the view that the petitioner can be relegated to the Court of Sessions to plead for discharge at the appropriate stage. In the peculiar facts and circumstances, I am of the view that the petitioner can be permitted to plea for discharge in absentia.
In the result this petition is disposed off, with a Cri.M.C. No.3371 of 2016 -7- direction to the learned Sessions Judge to consider the application, if any, of the petitioner for discharge without insisting for the personal presence of the petitioner. The precedents and citations submitted by the learned counsel and also the materials on record shall be considered by the learned Sessions Judge to conclude whether any prima facie material is made out against the petitioner to make him undergo the ordeal of protracted trial.
Sd/-
RAJA VIJAYARAGHAVAN.V., JUDGE kp/-7.6.16