Delhi High Court - Orders
Vimanyu Saini vs State Of Nct Of Delhi And Anr on 14 November, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2005/2021 and Crl.MA.No.13556/2021,22248/2022
VIMANYU SAINI
..... Petitioner
Through: Mr.Kumar Vaibhaw, Mohd.Ashaab
and Mr.Vaibhav Dubey, Advocates.
versus
STATE OF NCT OF DELHI AND ANR
..... Respondents
Through: Mr.Sunil Kumar Gautam, APP for the
State with SI Vishva Vijay, PS Vijay
Vihar.
Mr.Akhilesh Tejpal and Mr.Akash
Swami, Advocates for R-2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 14.11.2022
1. This petition is filed with the following prayer:
"A. Allow the present Application and quash the impugned FIR bearing number 438/2020 dated 22.10.2020 registered at PS: Vijay Vihar under Section 306 Indian Penal Code, 1860"
2. A complaint was received from Mr.Sanjay Awasthi S/o Sh.Sailender Awasthi, who stated on 24.08.2020 his father has taken a contract of H.No- 106, Triveni Apartment, West Enclave Pitampura, Delhi from one Vijay Kumar Saini for renovation and interior's for Rs.1,05,000/-. Vimanyu Saini S/o Vijay Kumar Saini was looking after each and every progress of renovation as Mr. Vijay Kumar Saini was not well. During the course of renovation Vimanyu Saini often used to scold & mentally torture his father over petty issues on phone because of which his father went into depression Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:38 and used to say "makaan maalik ke bete ne to naak mein dum kar diya hai"
upon which the complainant used to pacify his father saying all will be fine. However, with passage of time his father would again state Vimanyu is neither giving him salary nor letting his labour to work and he has rather stopped the labour from working and have got vacated the whole site. The deceased would even start quarreling with complainant. On 21.10.2020 when the health of his father deteriorated, he took him in ambulance to BSA hospital for his treatment where doctors told him he was not suffering from corona but because of mental torture he has consumed poison as he is fed up with the accused. During his treatment on 22.10.2020 in the morning at 03:17 PM the deceased died. Thus, upon his statement above mentioned case was registered and investigation was taken up. Body of deceased was got shifted to mortuary and post mortem of the body was got conducted vide PM No. 891/2020. Viscera from the deceased got preserved and same sent to FSL for further analysis.
3. During the further course of investigation a hand written suicide note was also recovered from the diary of deceased Sailender Awasthi which was taken into police custody along with his mobile phone.
4. The said suicide note runs as under:
"I, Shailendra Awasthi S/o Awasthi, ......illegible.......that he got done the work done forcibly by threatening me....and threatened to kill from A.C.P PASHCHIM VIHAR. The price which was agreed was something else and he got done lots of work from me, labour were engaged, I kept paying the labour and I invested the money of 49 and 50 in this work. Now he refused to give money, labour started threatening me. I had no option but to die. My wife gave by selling and mortgaging the ornaments. There's nothing left now, what I was supposed to do."Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:38
5. The allegations set out in the FIR as also in the suicide note does not in any manner refer to any abetment, conspiracy, facilitation being done or aid being given or of instigating the deceased to commit suicide. All such ingredients of abetment are missing in the suicide note or in the FIR. In Madan Mohan Singh vs. State of Gujarat, (2010) 8 SCC 628, the Court held as under:
"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 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:38 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 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."
6. Further in Netai Dutta vs. State of W.B. (2005) 2 SCC 659, the Court held as under:
"5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But, it may also be noticed that the deceased after his transfer in 1999 had never joined the office at 160 B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on 16.2.2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide of Pranab Kumar Nag. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the "abetment"
have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment".
6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:38 any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.
7. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal."
7. Admittedly, the arguments and disputes were over and it was only after two months the deceased had committed suicide. He even referred to annexure A3 viz. the work agreement dated 16.09.2020 between the parties to show the work was to be completed initially within three weeks, but then the deceased took time and promised to compete it by 06.10.2020; then again he took further dates to complete it and even agreed in case he does not complete the work, police complaint may be filed against him. Even an amount of Rs.42,000/- was received by deceased. Lastly, the deceased took further time to complete it till June, 2021. Thus the work which was to be completed in September, 2020, the deceased lingered it on to June, 2021 and though he was to be paid Rs.1,05,000/- but the deceased created a mess and despite taking Rs.42,000/- could not do any work and it was got done through some other contractor. It was submitted there were other issues in the family of the deceased as he had disowned his own son vide an article in the newspaper on 20.08.2020.
Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:388. Further an order dated 26.11.2020 passed in BAIL APPLN.3592/2020 the Court observed:
"4. Concededly, the contract entered into between the deceased and the petitioner was for a sum of ₹1,05,000/- and it was commercial transaction. Even if it is accepted that there were certain issues between the deceased and the petitioner regarding the manner in which the work was performed and the petitioner had withheld the consideration, does not necessarily lead to the conclusion that the petitioner is guilty of the offence of abetment of suicide. There does not appear any credible material to indicate that the petitioner was even aware that the deceased was planning to commit suicide."
9. The petitioner is a young boy, recently married and has to shift to Canada with his wife but because of this case he is facing trial without any fault on his part.
10. Even otherwise, the legal heirs of the deceased have entered into MoU dated 25.10.2022 with the petitioner herein whereby they have settled all the disputes qua the death of deceased and submit they shall abide by the terms and conditions viz. No.1 to 16 stipulated in the said MoU.
11. The affidavits of the legal heirs viz. Nilam Awasthi (Widow), Sanjay Awasthi and Sanjeev Kumar Awasthi (sons) and Reena (daughter) are on record wherein they say they have fully and finally settled all their disputes with the petitioner vide MoU dated 25.10.2022 and they affirm to abide by the terms and conditions of the said MoU. They have no objection in quashing of the FIR against the petitioner. They have settled the dispute without any undue influence.
12. The learned APP for the State though argues otherwise, but in Gaurav Vij & Anr. Vs. State of NCT of Delhi & Ors. 2021 SCC Online Del 4346, the Court held:
Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:3825. In the present case, as already observed hereinabove, respondent No. 2, 3 and 4 who are the sister, father and mother respectively of the deceased have filed their affidavits stating reasons for the compromise between the parties and the affidavits state that the primary interest is the wellbeing of the miner child namely master Kenit Vij who is aged around 8 years.
26. The compromise in the present case has been arrived at between the parties keeping in view the paramount wellbeing of the minor child, otherwise, the future scenario in the case would be, the parties would keep on litigating on one pretext or the other and they may also file petitions for taking the custody of the minor child and in the process, the most sufferer would be the minor child, while the parties would be settling their scores with each other. Since, the compromise has been arrived at between the parties, so it is best to avoid this type of scenario in future, so that the child who has lost his mother can at least live peacefully with his maternal family and paternal family and can enjoy the love and affection of both the world. However, no amount of love and affection can bring back in his life the love and affection of his mother, which she would have bestowed upon him, if alive.
27. In the facts and circumstances of the present case, the prosecution's case in the trial is going to face a situation of a case of no evidence, in view of the compromise between the parties. I find that the present case is a fit case to exercise powers U/s 482 Cr.P.C and further even otherwise, if criminal proceedings are allowed to continue, no fruitful purpose is going to be served and the proceedings shall only result in wastage of judicial time and the same is not likely to result in conviction. Accordingly, the present petition is allowed and the FIR No. 013/2020 U/s 498-A/306/201 R/w Section 34 of IPC registered at P.S. Prashant Vihar, New Delhi and all the proceedings emanating therefrom shall stand quashed.
13. Even in Mujeebuddin & Anr. V. State & Anr. 2021 SCC Online Del 2625, on grounds of compromise the FIR under Sections 306/34 IPC was quashed.
14. Thus, in view of above I see no impediment in quashing of the present FIR as there being no use to continue with the proceedings against petitioner and it would never entail in conviction of petitioner as the matter, even otherwise, stand settled.
Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:3815. Accordingly, the petition is allowed. Consequently, FIR No.438/2020 under Section 306 Indian Penal Code registered at police station Vijay Vihar and the proceedings emanating therefrom are quashed. Pending application, if any, also stands disposed of. No order as to costs.
YOGESH KHANNA, J.
NOVEMBER 14, 2022 DU/VLD Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:15.11.2022 16:38