Uttarakhand High Court
Lokesh And Others vs State Of Uttarakhand on 15 September, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Miscellaneous Application No. 1658 of
2022
Lokesh and Others ......Applicant
Versus
State of Uttarakhand
and Another
......Respondents
Mr. Tapan Singh, Advocate for the applicants.
Mr. T.C. Agarwal, D.A.G. for the State.
Dated: 15.09.2022
Hon'ble Sharad Kumar Sharma, J.
The applicants herein are co-accused persons, who have been summoned for trial in Criminal Case No. 1138 of 2022, State Vs. Lokesh and Others, for the offence under sections 306 IPC, which was emanating, as a consequence of registration of the FIR being FIR No. 234 dated 30.07.2020, which has been registered by the complainant Praveen Kumar i.e. respondent no. 2 herein for the alleged involvement of the present applicants in commission of offence under section 306 of the Indian Penal Code.
2. As per the set of allegations which had been leveled in the FIR, there was a suicide note of the deceased which deciphers the act of abetment, 2 as it has been averred in the complaint which was registered on 30.07.2020. The investigation was carried, the charge sheet has been submitted, being Charge Sheet no.1 dated 02.12.2021. The investigating officer, after examination of as many as 20 witnesses, had submitted the charge sheet before the Magistrate concerned, who has taken cognizance on the same for the purposes of trying the present applicants for the offence under section 306 IPC.
3. Learned counsel for the applicants submits, that if the simplicitor decipher of the set of allegations which had been leveled in the FIR are taken into consideration, it does not satisfies the parameters or the ingredients which are required to be satisfied before taking cognizance in order to prima facie establish an offence under Section 306 of IPC. In order to deal with his argument, the reference to the provisions of Section 306 of IPC itself becomes inevitably required to be considered. Section 306 of the Indian Penal Code is extracted hereunder:-
"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."
4. The basic element which is required to be considered therein in order to constitute an offence 3 that what would be the effect of abetment for the purposes of instigating a person to commit the suicide. It is the debate, which has been made, that in the instant case from the FIR, no element is made out from which an abetment could be said to be established, which will ultimately, according to the applicants' counsel, in the absence of there being any element of abetment, would itself render the cognizance order to be bad in the eyes of law. In support of his contention, the learned counsel for the applicants has firstly referred to a judgment reported in 2015 (9) SCC 239, State of Kerala and Others Vs. S. Unnikrishnan Nair and Others, wherein, the Hon'ble Apex Court in the said judgment for the purposes of determining, an Act, as to whether, it will fall to be an abetment under section 306 in the light of the judgment of M. Mohan referred to therein, has ultimately drawn a conclusion, that there has to be a satisfaction of certain basic ingredients which is to be satisfied in order to bring an Act within an ambit of Section 306 of IPC. What would be the relevant, is as to this subject at what stage, it was put to consideration before the Court. The opening paragraph of the judgment refers to that it was emanating from an order passed by the Kerala High Court, where, quashing of an FIR was sought in the exercise of its jurisdiction under 482 of the Code of Criminal Procedure in relation to a conjoint offences under section 182, 194, 195 and 195-A. 4
5. The establishment of an element of an effect of abetment therein was at the stage, where the FIR was itself put to challenge, without there being any contribution made by the Investigating Officer or by the Trial Court, itself by applying its mind necessitating the summoning of the accused persons for the offence under section 306 of IPC. While considering the effect of abetment, it was at that stage when the scrutiny of the factual matrix was under consideration, when the FIR, was under
challenge. Factually, this judgment may be under a different context altogether, because it was not dealing with a situation akin to the case at hand, where the effect of abetment was not an act, which was in an independent consideration owing to the facts, which has been dealt in paragraph 3 of the said, which was entirely distinct to the one at hand and particularly in the context of the impact of suicide note, which was considered as referred to in the light of the parameters of the judgment of the Hon'ble Apex Court, as referred to in the matters, which has been referred in paragraph 14 of the said judgment. Since, the principle of abetment was being considered in the context of the prima facie allegation which were leveled in the FIR and the effect of abetment therein was being considered under altogether a different factual matrix. The said judgment would not be applicable in the instant case as argued by learned counsel for the applicants. The paragraphs 14 and 15 of the said judgment is extracted hereunder:-5
"14. In Netai Dutta (supra), a two-Judge Bench, while dealing with the concept of abetment under Section 107 I.P.C. and, especially, in the context of suicide note, had to say this: "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 wilful 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 any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag. 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 6 criminal proceedings initiated against the appellant and accordingly allow the appeal.
15. In M.Mohan (supra), while dealing with the abatement, the Court has observed thus: doing of a thing. Without a positive act on the act of the accused to instigate or aid in committing suicide, conviction cannot be sustained."
6. Another judgment on which the reference has been made by learned counsel for the applicant is that as rendered by the Hon'ble Apex Court in SLP (Crl.) No. 7284 of 2017, Shabbir Hussain Vs. State of Madhya Pradesh, which was arising out from the impugned judgment, which was under
challenge therein as rendered therein by the Madhya Pradesh High Court in IA No. 87838 of 2017. In the said case too, if it is taken into consideration in its entirety, which was based upon as of consideration of the effect of section 306 of I.P.C., which was emanating on account of the matrimonial discord, where criminal case was registered under section 306/34 of the IPC; after investigation and after submission of the charge sheet and the trial has commenced as against which the revision was preferred, which was allowed by the Revisional Court, its being aggrieved against which, the said case was taken to the Hon'ble Apex Court, as decided by the judgment of 26.07.2021. The learned counsel for the applicant has made reference to the following paragraphs of the judgment as to what would be the basic ingredients required to be satisfied in order to bring a case under section 306 of the IPC, where 7 abetment of commission of a suicide, must play an active role by acting or instigating a person to do an act. The said judgment was being dealt with in the context of whether there was a mere harassment or not. The relevant paragraphs relied are extracted hereunder:-
"In order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide. Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal v. State of West Bengal(2010) 1 SCC 707]."
7. This Court is of the view that in the said case, where the aspect of abetment was being considered it was in the context of as to whether on account of the matrimonial discord whether there was any element of abetment, which would be justified to be read in accordance with the provisions contained under section 306 necessitating for the commission of the offence, but, in the said case too, it was arising out of the final judgment of the Madhya Pradesh High Court as decided on 10.02.2017 and was not an interlocutory order. Another judgment on which reliance has been placed by the learned counsel for 8 the applicant is that as rendered by the coordinate bench of this Court, as reported in (2013) 0 Supreme (UK) 789, Mahesh Yadav Vs. State of Uttarakhand and Another and particularly, he has made reference to paragraph 9 of the said judgment. In the said case, where the Court was dealing with the exercise of powers under section 482 of the Code of Criminal Procedure, while determining an aspect of an abetment in its correlated implication to the provisions contained under section 482, which has been widened enough by the coordinate bench to be exercised while exercising its inherent powers by even scrutinizing the evidence and drawing a conclusion as to whether there was any act of abetment to instigate a person to commit suicide. Paragraphs 7 to 10 as relied is extracted hereunder:-
"7. The Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander(2013) 1 SCC (Cri) 986 held that when no ingredients of any offence are prima facie made out against the applicant (s), the Court should intervene in exercise of it's inherent jurisdiction.
8. In V.P Shrivastava v. Indian Explosives Limited(2010) 10 SCC 361, the Hon'ble Apex Court held that when prima facie no case is made out against the accused, then the High Court ought to have exercised the jurisdiction under Section 482 Cr.P.C to quash the complaint. In Madan Mohan Singh v. State of Gujarat (2010) 8 SCC 628, the Hon'ble Apex Court quashed the conviction under Section 9 306 IPC on the ground that the allegations were irrelevant and baseless.
9. On a careful perusal of the material on record and the law laid down by the Hon'ble Apex Court, this Court can safely arrive at a conclusion that the applicant is not remotely connected with the offence under Section 306 IPC. The criminal courts are having inherent powers to make such order as may be necessary for the ends of justice.
10. Even a bare reading of the FIR/suicide note does not constitute any offence against the present accused-applicant. When factual foundation of any offence is not made out against the accused-applicant, then this Court should intervene in exercise of it's inherent jurisdiction to prevent the abuse of process of the court."
8. This Court is of the view that an act of suicide, cannot be determined exclusively based on the set of allegations which had been leveled in the FIR or the surrounding evidence, until and unless, it is put to test of scrutiny of evidence which will not be a subject-matter falling within the domain of exercise of inherent powers under section 482, as Section 482 jurisdiction of the Court in the exercise of inherent powers, has to be exercised sparingly and with utmost care and precaution and will not be or rather should not be resorted to, as an alternative mode or a procedure to scrutinize the evidence so as to arrive at a conclusion as to whether the offence complaint of satisfies, the ingredients for which the trial has commenced.
109. There are certain checks and controls, which are to be exercised by the courts while exercising 482 jurisdiction. Where appreciation or a detailed scrutiny of evidence is not required to be gone into under section 482, by drawing a conclusion, as to about the fact of establishment of the offence, which has been complaint of. That is what is being postulated by the Hon'ble Apex Court in the judgment reported in 2006 (7) SCC 296, Popular Muthiah Vs. State represented by Inspector of Police. Paragraphs 30, 32, 34 and 35 of the said judgment are extracted hereunder:-
"30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito 11 justitiae. It can, thus, do real and substantial justice for which alone it exists.
32. The decisions of this Court emphasised the fact that there exists a distinction between two classes of cases, viz., (i) where application of Section 482 is specifically excluded and (ii) where there is no specific provision but limitation of the power which is sought to be exercised has specifically been stated.
34. This Court furthermore laid down that the inherent power of the High Court can be invoked in respect of the matters covered by the provisions of the Code unless there is specific provision to redress the grievance of the aggrieved party. [See Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 and Raj Kapoor v. State
35. It is also not in dispute that the said power overrides other provisions of the Code but evidently cannot be exercised in violation / contravention of a statutory power created under any other enactment."
As well as that of the judgment reported in 2000 CRLJ 315 Delhi, Kavita Vs. State and Others. Paragraph 6, 9 and 10 of the said judgment is extracted hereunder;-
"6. On a conspectus analysis of all these authoritative pronouncements of the Apex Court, it is absolutely clear that inherent jurisdiction of this Court under Section 482 Cr. P.C. can be exercised for advancement of justice and if any attempt is made to abuse the process of the Court and this Court considers its interference absolutely necessary, in that event 12 provision of sub-Section (3) of Section 397 Cr. P.C. cannot limit or affect the exercise of inherent power under Section 482 Cr. P.C. But it has to be borne in mind that extraordinary powers under Section 482 Cr. P.C. have to be exercised sparingly and it should not be resorted to like the remedy of appeal or revision.
9. It is also relevant to mention that Section 483 of the Code of Criminal Procedure enjoins upon every High Court to so exercise its continuous superintendence over the Court of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. Thus, the supervisory or visitorial jurisdiction of the High Court under Section 483 Cr. P.C. is of paramount importance to examine correctness, legality or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts. Thus, on a conjoint reading of Sections 482 and 483 Cr. P.C., I am of the opinion that if the glaring illegality or injustice stares the Court in the face, then notwithstanding the prohibition contained in Section 397(3) Cr. P.C., the Court must exercise the inherent powers to annul that illegality or injustice and in that situation the High Court can exercise its inherent powers even at the instance of a private party though the State may not have thought fit to challenge the said illegality or injustice by filing appropriate proceedings.
10. In the instant case, a charge sheet was filed by the police under Sections 498- A/406/376/420/495/120-B/511 IPC.13
Admittedly, one of the offences in the charge sheet is Section 376 IPC, which is exclusively triable by Sessions Court. On perusal of the impugned order dated 11.9.1995 passed by the learned Metropolitan Magistrate, it appears that the learned Magistrate launched on a process of satisfying himself that a prima facie case has been made out on merits. He has assigned reasons about his reluctance to take cognizance of the offences punishable under Sections 495/420/376/120-B/511 IPC. Thus, in effect, the learned Magistrate has discharged the respondents of the aforesaid offences. In my opinion the whole approach of the learned Magistrate in discharging the respondents of the offences punishable under Sections 495/420/376/120-B/511 IPC is erroneous inasmuch as under Section 209 of the Code he had no jurisdiction to go into merits even for a prima facie satisfaction. Under Section 209 Cr.P.C., the Magistrate has simply to commit the case to the Court of Sessions and the Sessions Judge can discharge the accused under Section 227 of the Code, if satisfied that from the material placed before him, no offence appears to have been made out. Reference in this connection be made to the decision of the Supreme Court in Sanjay Gandhi Vs. Union of India & others (1979 CLR (SC) 14. Needless to say that Section 228 of the Code enjoins the Sessions Judge to transfer the case to the committal court if he is of the opinion that there is ground for presumption that the accused has committed on offence which is not exclusively triable by the Court of Sessions. In this view of the matter, I am constrained to observe that the 14 impugned order dated 11.9.1995 passed by the learned Metropolitan Magistrate discharging the respondents No. 2 to 5 of the offences punishable under Sections 495/420/376/120- B/511 IPC is an affront to law which could not be overlooked as it has resulted in miscarriage of justice. Therefore, it has become necessary to exercise powers under Section 482 Cr. P.C. read with Section 483 Cr. P.C. to annul the said manifest illegality."
10. In fact, the judgment of Mahesh Yadav (supra) of the coordinate bench of this Court, I am in respectful disagreement with the said judgment, as I am of the view that the Court has exceeded in the exercise of its jurisdiction, in venturing into an evidence in order to appreciate evidence as to whether there was any act abetment owing, to an act complaint of i.e. demand of dowry, which was a cause of commission of offence under section 306 of IPC. This judgment will not be applicable, as it is based upon an appreciation of evidence, which is not the scope of Section 482, as per the authorities which has been referred to by this Court, as recorded above.
11. Lastly, the learned counsel for the applicant has referred to yet another judgment reported in 2007 (3) Supreme 1073, Bhagwan Dass Vs. Avtar Singh and Others, in which, yet again, the aspect of abetment was being considered in the context of an order, which was under challenge in the said case, which was passed by the 15 subordinate court of Delhi, in the exercise of its revisional jurisdiction where an order of framing of charge was under challenge. The aspect of framing of charge was being considered therein, where the said case the deceased did not leave any suicide note, which could have been considered. (Paragraph 8 and 9 of the said judgment) where, it deals with the parameters of the abetment, it was only in the circumstances where there was an overwhelming evidence to rule out the doubt as to whether at all, there was an abetment or not, a simplicitor narration of fact in the FIR or in the charge sheet, may not itself bring the case within an ambit of 482, the jurisdiction of which, itself has been confined to be made applicable, by the High Courts in the exercise of its inherent jurisdiction as per the judgment reported in (2013) 12 SCC 620, Engineering Exports Promotion Council Vs. Usha Anand and Another, where an ambit of exercise of inherent powers in the exercise of 482 jurisdiction has been taken into consideration by the Hon'ble Apex Court on ultimate conclusion of the argument and after apprehending that the 482 application for the exercise of inherent powers as against the cognizance and the summoning order, which has been put to challenge under 482. Paragraphs 8 and 9 of the said judgment are extracted hereunder:-
"8. Being grieved by the aforesaid order special leave petition (Crl.) No. 41 of 2004 was filed before this Court, which was eventually 16 converted to Criminal Appeal No.1085 of 2004. This Court, on 27.9.2004, passed the following order in the said criminal appeal:-
1. Let the present appellant, if they are advised, file their objections, if any, to the petition in Criminal Miscellaneous (Main) No. 3009 of 2003 in the High Court within three weeks from today. If any objection is filed, the same shall be considered on its own merits by the High Court about which we express no opinion. The Criminal Miscellaneous (Main) No. 3009 of 2003 shall be restored to its original position as stood before disposal on 3.12.2003. If no objection is filed, the order passed on 3.12.2003 shall remain operative.
The liberty given to the appellant to file a counter shall be also applicable to the CBI.
2. This order has been passed notwithstanding the stand of the respondents that full liberty was granted to the appellant to file any objection which they failed to avail. Since a specific stand has been taken that the appellant intended to file objections for which it was not granted any opportunity, we have passed the present order."
9. After the aforesaid order an objection was filed and the High Court, while dealing with the controversy referred to the order passed by the trial court on 13.8.2001 directing refund of amount in respect of other accused persons, and further referred to the order passed on 5.10.2001, which we have reproduced hereinabove, and thereafter, as is manifest from the order impugned, it reproduced a part of the letter dated 30.8.1994 by late Yash Pal Anand 17 written to the respondent No. 2 therein and observed thus: -
"Admittedly, the other three brothers also deposited the amount under the same circumstances. After their acquittal when they applied to the trial court for refund of the amount deposited by them the trial court directed the refund of the amount. While passing the order of refund the learned trial court has categorically observed that money was deposited in compliance of the condition of bail order and without prejudice to the rights of the accused to be entitled to refund of the money. I fail to understand as to why same treatment be not meted out to the petitioner."
12. The learned counsel for the applicant has alternative prayed for that the matter may be disposed of in terms of the judgment of Satyendra Kumar Antil as reported in 2021 (10) SCC 773. With all due reverence at command, after having a wide experience in the field of practicing law, the circumstances of the applicability of a judgment has had to be always kept in mind by the counsel, who is relying on the judgment and particularly when it is not applicable owing to the parameters laid down in paragraph 3 which deals with the offences carrying a sentence of less than 7 years and it will go without saying that when 482 pertains to 306, it would be deemed that there was a consciousness about the nature of sentence, which the offence under section 306 carries i.e. of 10 years where Satyendra Kumar Antil judgment 18 will not apply within the exception clauses of A category of offences, as classified therein.
13. Hence, for the reasons aforesaid, I am not inclined to interfere in 482 application. The same is accordingly dismissed.
(Sharad Kumar Sharma, J.) Ujjwal