Himachal Pradesh High Court
Vikram Singh S/O Som Nath vs L. Muniswamy And Others on 5 August, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 5th DAY OF AUGUST, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 Cr.P.C No.591 OF 2021
Between:
1. VIKRAM SINGH S/O SOM NATH, R/O
FLAT NO.101-B, GH-86, SECTOR 20,
PANCHKULA(HARYANA) AT PRESENT
POSTED AS DGM-HUMAN
RESOURCES & ADMINISTRATIVE AT
JSW HYDRO ENERGY LIMITED
(BASPA-II & KARCHAM WANGTOO
HYDRO
PROJECT) DISTRICT
KINNAUR , H.P. AGED 51 YEARS.
2. YOGESH MOHTA S/O BHAGWATI
PRASAD MOHTA, R/O B/503, EXOTICA
ELEGANCE, 9A, MALL ROAD, AHINSA
KHAND-II, INDIRAPURAM, GAZIABAD
(UP) AT PRESENT POSTED AGM-
HUMAN RESOURCES &
ADMINISTRATIVE AT JSW HYDRO
ENERGY LIMITED (BASPA-II &
KARCHAM WANGTOO HYDRO
PROJECT) DISTRICT KINNAUR, H.P.
AGED 50 YEARS.
....PETITIONERS
(BY MR. AJAY KOCHHAR, ADVOCATE WITH
MR. VIVEK SHARMA AND MR. VARUN CHAUHAN and MS. AVNI
KOCHHAR, ADVOCATES.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(MR. SUDHIR BHATNAGAR AND MR.
NARENDER GULERIA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
SUNNY DHATWALIA, ASSISTANT
ADVOCATE GENERAL).
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2
Whether approved for reporting? Yes.
This petition coming on for order this day, the Court passed the following:
.
O R D E R
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioners, who are posted as DGM and AGM, respectively at JSW Hydro Energy Limited ((Baspa-II & Karcham Wangtoo Hydro Project) District Kinnaur, H.P., for consequent proceedings quashing of FIR No.62 of 2020, dated 27.07.2020 registered at police Station Bhabanagar, District Kinnaur, H.P., under Section 306 and 34 of IPC as well as i.e. case No.25 of 2021 (CNR No. HPK 1050022322021), pending in the Court of learned Chief Judicial Magistrate, Kinnaur, District Kinnaur, H.P.
2. Precisely, the facts of the case, which led to lodging of the FIR sought to be quashed in the instant proceedings are that on 27.07.2020, police after having received information that one of the worker in JSW complex has committed suicide, reached the spot and recorded the statement of complainant Sh. Sukhi Ram under Section 154 Cr.P.C, wherein he alleged that since the year 2008 he is posted as Laboratory Assistant at JSW Power House Wangtoo. On 27.07.2020, at 1:00 PM, he alongwith other employees went to JSW Field Hostel No.6 for having his meal, but since on that day there was lot of noise, he enquired from the fellow employee, who disclosed that carpenter Jai Prakash Vishwakarma has committed suicide by hanging himself in his quarter i.e. room No.24. He alleged when he reached room ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 3 No.24, he found that Jai Prakash Vishwakarma hanging with the hook of the ceiling fan. He stated that thereafter police visited the room of the deceased .
and recovered one suicide note lying on the bed, wherein deceased had written to President Sh. Jiwan Negi that he did not want to take Voluntary Retirement Scheme (for short 'VRS'), but he has been harassed by Sh. Vikram Singh and Yogesh Mohta. In suicide note, deceased further alleged that he is committing suicide after being harassed mentally by Vikram Singh and Yogesh Mohta.
Deceased also written details in the English notebook with regard to loans taken by him. He requested Jiwan Kumar to return the loan with his son. On the basis of aforesaid statement and suicide note recovered from the room, police lodged the FIR against the accused, named in the FIR. After completion of the investigation, police has already presented the challan in competent court of law, but before same could be taken to its logic end, petitioners have approached this Court in the instant proceedings for quashing of FIR as well as consequent proceedings pending in the competent court of law on the ground that at no point of time deceased was compelled by the accused, named in the FIR, to take 'VRS', rather he himself in terms of the scheme formulated by JSW Company opted for 'VRS', but before same could be finalized, he committed suicide. It has been further claimed by the petitioners that otherwise also, they are not the competent authority to take decision on the request made by the deceased for 'VRS' in terms of policy formulated by the Government, rather such decision was to be taken by the Head of plant, who has been not arrayed as an accused in the instant case. In nutshell, it has been claimed on ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 4 behalf of the petitioners that no case muchless under Section 306 of IPC, is made out against them and they have been falsely implicated.
.
3. Pursuant to the notice issued in the instant proceedings, respondent-State has filed reply, wherein facts, as narrated hereinabove, have been not disputed. Respondent in reply has claimed that since deceased was compelled to take 'VRS' and he had liability to pay loan, he being under pressure committed suicide. It has been further stated in the reply that there is ample evidence collected on record suggestive of the fact that deceased was being constantly harassed by the accused, named in the FIR ,and they compelled him` to take voluntarily retirement and as such, it cannot be said that they have been falsely implicated.
4. I have heard the learned counsel for the parties and perused the record.
5. Before ascertaining the genuineness and correctness of the submissions and counter submissions having been made by the learned counsel for the parties vis-à-vis prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.
6. A three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, if it comes to the conclusion that allowing the ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 5 proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
.
7. Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.
8. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. In the aforesaid judgment, the Hon'ble Apex Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC, Court exercising such power must ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 6 be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, .
and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 7 rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their .
defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 8 refuted by the prosecution/complainant;
and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with .
the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
9. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him/her due to private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
10. Sh. Narender Guleria, learned Additional Advocate General, contended that since investigating agency after having completed investigation has already filed challan under Section 173 Cr.PC., in the competent court of law, prayer made on behalf of the petitioners for quashing FIR cannot be accepted at this stage. However, this Court is not inclined to accept the aforesaid submission made by the learned Additional Advocate General for the reason that High Court while exercising jurisdiction under Section 482 Cr.PC ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 9 can even proceed to quash charge, if it is satisfied that evidentiary material adduced on record would not reasonably connect the accused with the crime .
and if trial in such situations is allowed to continue, person arraigned as an accused would be unnecessarily put to ordeals of protracted trial on the basis of flippant and vague evidence.
11. Recently, the Hon'ble Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Departmetn of Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC. The relevant paras of the judgment are as under:
16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.-
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P. and Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 10 of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to .
prevent abuse of process of power of any court."
12. Recently, the Hon'ble Apex Court in case titled Pramod Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608, has elaborated the scope of exercise of power under Section 482 Cr.PC, the relevant para whereof reads as under:-
"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 11 itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of .
specific provisions in the statute."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan Lal6 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335 r "102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2).
..........
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCCOnLine SC3100 ("Dhruvaram Sonar") :
::: Downloaded on - 09/08/2022 20:01:39 :::CIS 12"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set .
out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
13. In the light of aforesaid law laid down by the Hon'ble Apex Court, now this Court would make an endeavour to examine and consider the prayer made in the instant petition vis-à-vis factual matrix of the case. Close scrutiny of the material available on record reveals that FIR sought to be quashed came to be instituted on the basis of the statement made by complainant Sh. Sukhi Ram, who was also working in JSW Power House. It is none of the case that prior to committing suicide, deceased ever complained him of mental harassment caused by the accused, named in the FIR, on account of voluntary retirement, rather complainant himself stated in his statement recorded under Section 154 Cr.P.C., on the basis of which, formal FIR came to be lodged that he after having heard noise inquired and found that deceased Jai Prakash Vishwakarma has committed suicide. He alleged that he went to the room of the deceased and found that he had committed suicide by hanging himself with the hook of the ceiling fan. As per complainant one suicide note duly signed by deceased was found lying on the bed, wherein deceased had alleged that he is committed suicide on account of harassment meted to him at the hands of the accused, named in the FIR. In the suicide note, deceased also alleged that though he did not want to take 'VRS', but he was compelled by Vikram Singh and Yogesh Mohta. On the second page of suicide note addressed to Sh. Vijay ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 13 Kumar deceased has furnished information with regard to loan taken by him.
He also made request to Sh. Vijay Kumar to repay the loan alongwith his son.
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14. Mr. Ajay Kochhar, learned counsel representing the petitioners while inviting attention of this Court to the policy formulated by JSW with regard to voluntary retirement (Annexure P-2) contended that decision, if any, with regard to voluntary retirement was to be taken by an employee not by the company and as such, it cannot be said that deceased was ever compelled by the officials of the company to take 'VRS'. He further submitted that though decision with regard to prayer made on behalf of an employee for 'VRS' was to be taken by the Head of the plant, but there are ample documents available on record suggestive of the fact that fellow employees, who had earlier applied for 'VRS', subsequently withdrawn their 'VRS' and permission was granted by the company (Annexure P-3 to P-5). Lastly, learned counsel representing the petitioners submitted that accused named in the FIR, are also the employees of JSW Company and difference between them and deceased is/ was that accused named in the FIR are/were holding managerial position, whereas deceased was carpenter. However, ultimate decision with regard to formulation of Voluntary Retirement Scheme and thereafter acceptance of proposal, if any, made by an employee was to be taken by the Head of the plant and as such, no role can be said to have been played by the accused named in the FIR in accepting the prayer made on behalf of the deceased for taking voluntary retirement, which was actually accepted by the Head of the Plant. Mr. Kochhar, while inviting attention of this Court to Section 306 IPC, contended that when there is no evidence of abetment/instigation, if any, on the part of the accused ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 14 named in the FIR, which compelled deceased to commit suicide, no case muchless under Section 306 of IPC can be said to be made out against the .
petitioners and they are liable to be discharged. While inviting attention of this Court to the material placed on record with the final challan, learned counsel for the petitioners argued that case filed under Section 306 of IPC in all probabilities is likely to fail, but in case proceedings are not quashed at this stage, great prejudice would be caused to the petitioners, who would be unnecessarily compelled to go through ordeal of the protected trial, which is likely to culminate into acquittal.
15. While refuting aforesaid submissions made on behalf of learned counsel for the petitioners, Mr. Narender Guleria, learned Additional Advocate General, strenuously argued that all the ingredients as are required to bring the case in the ambit of Section 306 IPC are attracted in the present case and as such, it cannot be said that petitioners have been falsely implicated. While referring to the suicide note left behind by the deceased, learned Additional Advocate General argued that it is ample clear that accused, named in the FIR, compelled the deceased to take 'VRS'. He argued that since accused named in the FIR made deceased to sign 'VRS' document forcibly, as a consequence of which, he was compelled to commit suicide, it can be safely presumed that accused named in the FIR, abetted/instigated the deceased to commit suicide and as such, they have been rightly booked under Section 306 of IPC. He further argued that as per RFSL Report handwriting with which suicide note has been written is of deceased.
::: Downloaded on - 09/08/2022 20:01:39 :::CIS 1516. Careful perusal of Voluntary Retirement Scheme (Annexure P-2) reveals that vide communication dated 11th October, 2019, JSW Company with .
a view to reduce the manpower circulated the policy for voluntary retirement, but if the preamble of aforesaid scheme is read in its entirety, it clearly reveals that ultimate decision with regard to 'VRS' was to be taken by an employee not by the company. Employee interested in taking voluntary retirement was to furnish his/her option. Policy, if read in its entirety, nowhere reveals that it was compulsory for all the employees, who were earlier working with JP Industries to take voluntary retirement. Policy further reveals that in lieu of voluntary retirement some amount was to be paid by the company. In the case at hand, though prosecution case is that deceased was compelled by the accused named in the FIR to take voluntarily retirement, but as has been discussed hereinabove, option in that regard was to be exercised by an employee. Even for the sake of arguments, it is presumed to be correct that deceased was compelled by accused named in the FIR to take 'VRS' even then he had an opportunity to make the request to re-consider his decision. There is/ are ample evidence/documents available on record that employees, who at one point of time had applied for 'VRS' and actually taken 'VRS' requested the company to permit them to reconsider their decision and company not only permitted such employees to reconsider their decision, but also took them back in the job.
However, in the instant case application by deceased for voluntary retirement was filed on 13.07.2020, which is part of the challan and date of his reliving was 31.07.2020. Deceased sworn an affidavit on 25.07.2020 before Sub Divisional Magistrate, Tapri, stating therein that he has voluntarily applied for ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 16 voluntary retirement. If he was being compelled by the management or by the accused named in the FIR, he had an opportunity to state before Sub Divisional .
Magistrate that though he does not want to take voluntary retirement but is being compelled by the accused named in the FIR as well as their management. Two days after his having sworn affidavit before the Sub Divisional Magistrate, he committed suicide leaving behind suicide note, as detailed hereinabove. It is pertinent to take note of the fact that at the time of suicide deceased was found heavily drunk, meaning thereby he was not in his senses and was unable to think his good or bad.
17. Since deceased took extreme step of committing suicide while in state of heavy intoxication, it cannot be said that he was in his senses while writing suicide note as writing of the deceased which has been considered suicide note by investigating agency could not and ought not to be read like a Will, especially when the deceased was not in his senses due to his inebriated condition and also in the absence of any other evidence on record evidencing abetment on the part of the petitioners.
18. Leaving everything aside, this Court finds from the record, as has been observed hereinabove, that final decision, if any, with regard to acceptance of voluntary retirement, if any, mooted by the petitioners was to be taken by the deceased and as such, it is not understood how petitioners, who were merely working as DGM and AGM in the plant could be held liable for compelling deceased to take voluntary retirement, which otherwise as per affidavit sworn by him before the Sub Divisional Magistrate was voluntarily taken by him. Voluntary Retirement Scheme (Annexure P-2) itself suggests that ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 17 accused named in the FIR was only to process the proposal of voluntary retirement, if any, made by the employees in terms of scheme formulated by .
the company, but ultimate decision in that regard was to be taken by the Head of plant. Even in the case of the deceased, decision with regard to acceptance of voluntary retirement was to be taken by the Head of the plant, but he was not arrayed as an accused. Even if it is presumed that accused named in the FIR persuaded deceased to apply for 'VRS' which he never wanted to take, petitioners cannot be held liable for their having committed offence punishable under Section 306 of IPC, unless it is proved on record that they had mens rea to abet/ instigate the deceased to commit suicide, which is otherwise basic requirement to bring the case in ambit of Section 306 of IPC. Apart from above, there is no material available on record suggestive of the fact that accused named in the FIR had any kind of prior animosity with the deceased and in past on any occasion they had humiliated ,admonished the deceased or in that regard complaint, if any, was ever made by the deceased to the higher authorities. Moreover, accused named in the FIR came in the contact of the deceased after company was taken over by JSW and as such, it is difficult to conclude that they forcibly wanted to throw the petitioner out of the job, especially when there is material evidence, as has been pointed hereinabove, that request made by some of the employees for withdrawal of their voluntarily retirement was duly considered and they were permitted to continue in the company.
19. Since as per prosecution case there was a liability on the deceased to repay the loan, as has been recorded by him in the suicide note, it ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 18 can be inferred that he was under some sort of pressure to repay the loan, which compelled him to commit the suicide.
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20. To prove allegation, if any, under Section 306 IPC, it is incumbent upon the prosecution to prove abetment or instigation, if any, at the hands of accused named in the FIR, which is totally missing in the case at hand. At this stage, it would be apt to take note of provision contained under Section 306 of IPC, which reads as under:-
"Section 306- Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide , shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Abetment is defined under Section 107 of IPC, which reads as under:-
"Abetment of a thing.--A person abets the doing of a thing, who--
(First) -- Instigates any person to do that thing; or (Secondly)--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 19 facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
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21. Abetment is defined under Section 107 of IPC,which reads as under :-
"107. Abetment of a thing-A person abets the doing of a thing, who -- First. -- Instigates any person to do that thing; or Secondly.-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation
1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. r Explanation 2.--Whoever either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission there of, is said to aid the doing of that act."
22. Similarly, the dictionary meaning of the word instigate' is to bring about or initiate, incite someone to do something. The Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh 2001 9 SCC 618 has defined the word 'instigate' as instigation is to goad, urge forward, provoke, incite or encourage to do an act."
23. Hon'ble Apex Court in case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr. (2010) 12 SCC 190 has dealt with scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC. Relevant pars of the aforesaid judgment read as under:
"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 the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 20 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 that act must have been intended to push the deceased into such a position that he committed suicide."
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24. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police (2019) 3 SCC 315, the Hon'lbe Apex Court has held as under:
"The essential ingredients of the offence under Section 306 I.P.C. are:
(i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
25. The Hon'ble Apex Court in Ude Singh & Ors. Vs. State of Haryana, 2019 17 SCC 301, has held that in cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court is required to look for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 21 suicide by another or not, could only be gathered from the facts and circumstances of each case.
.
26. Recently, the Hon'ble Apex Court in a case (Geo Varghese v.
State of Rajasthan and Anr, 2021 (4) RCR (Criminal) 361) where student committed suicide after being reprimanded by the teacher/administration, categorically held that reprimanding student would not amount to instigation to commit suicide. Relevant para of the aforesaid judgment reads as under:
27. It is a solemn duty of a teacher to instil discipline in the students. It is not uncommon that teachers reprimand a student for not being attentive or not being upto the mark in studies or for bunking classes or not attending the school. The disciplinary measures adopted by a teacher or other authorities of a school, reprimanding a student for his indiscipline, in our considered opinion, would not tantamount to provoking a student to commit suicide, unless there are repeated specific allegations of harassment and insult deliberately without any justifiable cause or reason. A simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentionally aid to the commission of a suicide by a student.
28. 'Spare the rod and spoil the child' an old saying may have lost its relevance in present days and Corporal punishment to the child is not recognised by law but that does not mean that a teacher or school authorities have to shut their eyes to any indiscipline act of a student. It is not only a moral duty of a teacher but one of the legally assigned duty under Section 24 (e) of the Right of Children to Free and Compulsory Education Act, 2009 to hold regular meetings with the parents and guardians and apprise them about the regularity in attendance, ability to learn, progress made in learning and any other act or relevant information about the child.
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32. Considering the facts that the appellant holds a post of a teacher and any act done in discharge of his moral or legal duty without their being any circumstances to even remotely indicate that there was any intention on his part to abet the commission of suicide by one of his own pupil, no mens reacan be attributed. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under section 306 IPC do not exist .........................................
::: Downloaded on - 09/08/2022 20:01:39 :::CIS 2240. In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the deceased in such .
circumstances that there was no option available to him except to commit suicide.
27. In the aforesaid judgment, the Hon'ble Apex Court has categorically held that simple act of reprimand of a student for his behaviour or indiscipline by a teacher, who is under moral obligations to inculcate the good qualities of a human being in a student would definitely not amount to instigation or intentional aid to the commission of a suicide by a student. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under Section 306 IPC do not exist. Apart from above, the Hon'ble apex Court has held that victim committed suicide allegedly for being reprimanded for repeatedly bunking classes. Reading of victim's suicide note shows that same was penned by immature and hypersensitive mind, thus act of accused being teacher would not ordinarily induce a circumstances to a student to commit suicide. In the case at hand, allegedly deceased has committed suicide after his being compelled to take voluntary retirement by the accused name in the FIR, but since decision with regard to 'VRS' was to be taken by the Head of the plant and accused named in the FIR were merely holding managerial positions in the company, they cannot be said to have abetted/ instigated deceased to commit suicide.
28. Close scrutiny of aforesaid law taken into consideration clearly reveals that mere allegation of harassment of deceased by the accused named in the FIR may not be sufficient to conclude guilt, if any, under Section 306 of IPC, rather to bring the accused in ambit of Section 306 of IPC, it is required to ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 23 be established on record that deceased committed suicide after being instigated and abetted by the accused, which is totally missing in the instant .
case.
29. Contents of FIR and Final Report filed under Section 173 Cr.P.C, if are taken to be correct, on its face value, do not prima facie constitute the offence against the accused. Neither FIR nor Final Report filed under Section 173 Cr.P.C, disclose offences, if any, punishable under Section 306 IPC against the accused named in the FIR. There is no sufficient evidence available on record to connect the accused named in the FIR for the offences alleged to have been committed by them.
30. Having scanned the entire material adduced on record by the prosecution alongwith Final Report filed under Section 173 Cr.P.C, this Court has no hesitation to conclude that evidentiary material on record, if accepted, would not reasonably connect the petitioners with the crime and as such, no fruitful purpose would be served, in case, accused are put to protracted trial, which otherwise, is likely to fail on account of lack of evidence.
31. Having perused the material available on record, this Court finds that chances of conviction of accused named in the FIR, are very remote and bleak and as such, it may not be in the interest of justice to let accused named in the FIR face trial, which in any eventuality is likely to fail.
32. Consequently, in view of the above, present petition is allowed and FIR No.62 of 2020, dated 27.07.2020 registered at police Station Bhabanagar, District Kinnaur, H.P., under Section 306 and 34 of IPC as well as consequent proceedings i.e. case No.25 of 2021 (CNR No.HPK ::: Downloaded on - 09/08/2022 20:01:39 :::CIS 24 1050022322021), pending in the Court of learned Chief Judicial Magistrate, Kinnaur, District Kinnaur, H.P. are quashed and set-aside and the petitioners-
.
accused are acquitted of the charges framed against them under Section 306 and 34 IPC. Interim order, if any, is vacated.
Accordingly, petition is disposed of alongwith pending applications, if any.
5th August, 2022 (Sandeep Sharma),
(shankar) Judge
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