498a acquittal qua relatives by bangalore district court

Excerpt:

Bangalore District Court
R.T.Nagar Police Station vs Accused No.2 To 7 Are On on 3 October, 2018
  IN THE COURT OF LVI ADDL. CHIEF METROPOLITAN
            MAGISTRATE, BANGALORE

         PRESENT: SRI.HATTIKAL PRABHU.S.
                                                 M.A.,LL.B(Spl) LL.M.,

   DATED THIS THE    03rd DAY OF OCTOBER, 2018


Serial   Number   of   the    C.C.27293/2011
case

Name       of               the State by Police Inspector,  
complainant                     R.T.Nagar Police station 

                                  (Reptd.   by   Sr.Asst.Public
                                  Prosecutor )

Name   of   the   accused 1) Shivakumar
person                    S/o.Venkataramadu,
                          Aged about 32 years,

                                  2).    Venkataramadu,
                                  S/o.late. Narasappa,
                                  Aged about 70 years,

                                  3). Smt.Nagamma,
                                  W/o.Venkataramadu,
                                  Aged about 65 years,

                                  4). Pavan Kumar,
                                  S/o.Anjinappa,
                                  Aged about 30 years,

                                  5).Smt.Narsamma,
                                  W/o.Mahesh,
                                  Aged about 34 years,

                                  6). Murthy,
                                  S/o.Venkataramadu,
                                  Aged about 27 years,
                             2                 C.C.27293/2011




                            7). Nagaraju,
                            S/o.Venkataramadu,
                            Aged about 23 years,
                            All are R/a.No.8, 1st cross,
                            Christian Colony, Srirampura,
                            Bangalore-21

                            (Reptd. by Sri.SMG... Adv.,

Date of commencement   In between  02.07.2003 and
of offence           02.07.2009

Offences complained of      U/Secs.   498(A)   of   the   IPC
                            and Sec. 3 and 4  of D.P.Act.

Date   of   arrest   of A2 to 7 are not arrested,  
accused                  Accused   no.2   to   7   are   on
                         anticipatory   bail   in
                         Crl.Misc.2880/2011­
                         24.06.2011
Date   of   release   of
accused on bail          19.07.2011

Date of commencement 10.10.2012
of recording evidence
Date   of   closure   of 12.06.2018
recording evidence
Offences Proved          Nil 

Plea of the accused and Not guilty
his examination :

Final Order :               Accused Not found guilty

Date of final order         03.10.2018
                                      3                   C.C.27293/2011




                        JUDGMENT

U/Sec. 355 of the Cr.P.C I. The facts which are necessary to decide this case are as under:­  1 .

   The allegations against the accused :   That the accused no.1  married C.W.1­Smt.Kalavathi on 14.02.2011 in accordance with the customs and at the time of marriage received gold and cash  as dowry and  at the   instigation   of   accused  no.2   to   7,     the   accused   no.1 extended   physical   and   mental   cruelty   to   C.W.1   by demanding   additional   dowry   and   and   thereby     the accused   no.1   to   7     committed   the   offences   punishable U/Secs.3 and 4 of D.P.Act and Sec. 498(A)  of IPC.

2.   After   submitting   the   charge   sheet,   criminal   case against accused came to be registered. Section  207 Cr.P.Ccomplied.  Accused   no.2  to 7 were on bail. Accused no.1 remained   absconding   and   as   split   up   charge   sheet   was registered   against   accused   no.1   in   C.C.4447/2014   and later   on   23.05.2017 accused no.1 appeared and the split 4 C.C.27293/2011 up C.C.4447/2014 was merged with this case. Charge sheet copy furnished to  the accused no.1 to 7.

The charge framed and read over to the accused no.1 to 7 .  Accused no.1 to 7  denied the charges leveled against them  as false and pleaded not guilty.

3. On   behalf of prosecution,   evidence of P.W.1 to 5 adduced  and documents at Ex.P.1  to 4  are got marked.

 

4. After closure of prosecution evidence, accused no.1 to 7 are examined U/Sec.313(1)(b) Cr.P.C, the accused no.1 to   7   denied   each   and   every   incriminating   circumstances found against them,  as false. No defence evidence on behalf of accused.

5. Heard both sides,

6. Now the point that arises for the determination of this court is:

“Whether   the   prosecution   proves   the alleged guilt of the accused no.1 to 7   for the  offences  punishable U/Sec. 3 and  4 of 5 C.C.27293/2011 D.P.Act and Sec.498(A) of the IPC,   beyond all reasonable doubt?

My finding on the above point is in the  Negative    for the reasons stated below:

II. Brief statement of reasons

1.   In   support   of   the   case   of   the   prosecution,     the informant   of   crime   C.W.1­Smt.Kalavathi   who   is   wifeof accused no.1 Shivakumar is  examined as P.W.2.  Father of C.W.1   by   name   Krishna   (C.W.2)     is   examined   as   P.W.3. C.W.3   who   is   mother   of     C.W.1   is   examined   as   P.W..4. C.W.4 one Sri. Babu is examined as P.W.5 claiming to be circumstantial witness. C.W.5 one Sri.Ranjith is examined as P.W.1 claiming to be circumstantial witness.

2. P.W.2, 3 and 4 deposed supporting the case of the prosecution.     P.W.1   one   Sri.Ranjith   turned   hostile   to   the case of the prosecution. P.W.4 one Sri. Babu in his evidence deposed that accused no.1 used to  inform him that there is problem   in   his   home   for   lack   of     understanding   between himself and C.W.1.

3.   The   prosecution   failed   to   secure   other   witnesses inspite of giving sufficient opportunities.

4.     During course of trial, the defence of the accused is that the C.W.1 failed to adjust in the matrimonial home and she insisted for setting up a separate house in order to avoid   household   work.   Further   it   is   contention   of   the accused that  C.W.1 was not interested to  lead matrimonial life with accused no.1 for that she used to make allegation of illicit relationship of accused no.1 with one Shashikala. Further   it   is   contention   of   the   accused   that     at   the instigation of  C.W.1 and  her parents, separate house was set up, but the C.W.1 made the accused no.1 to leave the house and accordingly accused no.1 left the house for long period.   It   is   contention   of   the   accused     that     when panchayath was conveyed   relating to   the dispute of illicit relationship, the relatives  of C.W.1 assaulted accused no.1 and thereafter   under the apprehension  that accused no.1 would initiate legal action , a false complaint is filed.

5.  During cross examination of P.W.2 to 4 suggestions are   posed   as   per   defence   of   the   accused.     During examination   of   the   accused     also   accused   no.1   and   2 explained   that   they   are   poor   persons   and   C.W.1   failed   to adjust with   them and she voluntarily left the matrimonial home.

6. During course of arguments, learned Sr.Asst. Public Prosecutor   argued     that   the   evidence   of     P.W.   2   to   4   is sufficient to establish the alleged guilt of the accused and he prayed to convict the accused.

7. On the other hand, it is argued on behalf of accused that   the   admissions   given   by   P.W.2   to   4   as   to   conveying  panchayath     and   as   to   abscondance   of   accused   no.1, coupled   with   the     circumstances   explained   by   them   is sufficient to establish the defence of the accused. Further  it is argued that the accused are innocent and not committed any offences and prosecution also failed to  bring home the guilt of the accused.

8.     This court observed that the prosecution failed to satisfactorily   establish   the   fact   of   giving   dowry   by   way   of cash etc., by adducing specific evidence. Who gave cash to which   accused,   on   which   date   cash   was   given   and   other particulars are not explained.   Particularly   demand   of dowry     is   not   explained.     It   is   allegation   against   accused that   all accused demanded dowry and taken dowry.  In the cross examination   it is categorically admitted that all the accused  are not residing together. Admittedly  the accused are   relatives   of   C.W1   to   3     prior   to   the   marriage.     Under these   circumstances,     this   court   comes   to   the   conclusion that  the evidence placed on record is not sufficient to hold that  accused demanded dowrt and taken dowry as alleged.

9.     Coming   to   the   question   of   demanding   additional dowry and cruelty for the purpose of procuring   additional dowry,   this   court     observed   that   the   P.W.2   to   4   deposed before   court     that   there   is   serious   dispute     relating   to alleged illicit relationship of accused no.1 with Shashikala. The P.W.4 in the cross examination   categorically admitted that  after conveying panchayath relating to   allegations of illicit relationship, separate house was set up  for C.W.1 and accused no.1.  Further P.W.4 categorically admitted that in the said separate house the accused no.1 and C.W.1 lived separately.   Further   this   court   observed   that     there   is   no specific   explanation     on   the   part   of   the   accused       as   to demanding   additional   dowry   by   particular   accused.     No specific allegation is made out as to  harassment or cruelty at the hands of  accused by demanding additional dowry. It is   undisputed   fact   that   the   accused     and   C.W.1   failed   to adjust with   each other and panchayath was conveyed and accused   no.1   left   the   house   and   he   was   absconding. Further   this   court     observed   that   the     split   up   case   was registered against  accused no.1 and subsequently split up case  is merged in this case.

10. Under these circumstances,   I would like to   rely on the decision reported in   AIR 2010 SUPREME COURT 3363­Preeti Gupta & Anr. Vs.State of Jharkand & Anr­ wherein   Hon’ble   Supreme   Court   of   India,  wherein   it   is held that­ 10 C.C.27293/2011 “Penal   code.   S.   498A   Ss.3,4­Harassment     and demand   of   dowry­complaint   filed   by   the   wife against   husband   and   his   relatives

­No   specific allegations   in   the   complaint   against   appellants, sister   in   law   and   unmarried   brother   in   law   of complainant­Appellants   residing   at   different place­Neither   visited   the   place   of   incident­Nor lived   with   complainant   and   her   husband­Their implication in complaint is meant to harass   and humiliate   husband’s   relative­permitting complainant to pursue complaint would be abuse of   process   of   law­complaint,   held   liable   to   be quashed”

11. After going through the law laid down in the above said   decision   and   after   considering   the   facts   and circumstances,   of   the   present   case   on   hand,     this   court comes to the conclusion that  the evidence placed on record is not sufficient to  establish that  accused extended cruelty towards the  C.W.1 relating to  additional dowry. Hence this court   held   that   necessary   ingredients     U/Sec.498A   of   the IPC  is not satisfactorily proved by the prosecution.

11 C.C.27293/2011

12.   Under these circumstances, this court comes to the conclusion that   it is not safe and proper to convict the accused  for the alleged offences. Accordingly this court held that     prosecution   failed   to     bring   home   the   guilt   of   the accused beyond all reasonable doubts. Accordingly I answer the   above   point   in   the  Negative  and   proceed  to   pass  the following order…

III. Final Order:

Acting   U/Sec.248(1)   of   Cr.P.C     I hereby acquit the accused no.1 to 7   for the   offences punishable U/Sec.498(A) of the IPC and Sec.3 and 4 of the D.P.Act.

Accused no.1 to 7 are   set at liberty forthwith   and  the bail  bonds of  accused and that of surety stand canceled.

(Judgment   dictated   to     the   Stenographer,   typed   by   her computerized copy corrected and then pronounced by me in the open court on this the 03rd day of October 2018).

(Hattikal Prabhu .S)  LVI Addl.C.M.M. Bangalore.

                                  ********
                                 12                 C.C.27293/2011



                      :ANNEXURE:

1.List of Witnesses examined on behalf of the  prosecution:

P.W.1: Sri.S.Ranjith P.W.2: Smt.Kalavathi P.W.3: Sri.Krishna.C P.W.4: Smt.Vasanthamma P.W.5: Sri.Babu

2. List of Documents marked on behalf of the  prosecution:­  Ex.P.1:-Statement of P.W.1 Ex.P.2: Complaint Ex.P.2(a): ­Signature Ex.P.3­Wedding card Ex.P.4: 06 wedding photos

3.:­ List of witnesses and documents marked on behalf  of the accused NIL

4. List of Material objects marked on behalf of the  prosecution:

 

Nil                                         (Hattikal Prabhu.S)  LVI Addl.C.M.M. Bangalore.

Advertisements

498a quash against relatives, dowry demand was not for them

Bombay High Court
Arjun Haribhau Bhivsane And … vs The State Of Maharashtra And Anr on 28 September, 2018
Bench: T.V. Nalawade
    (Judgment)                (1)   Cri. Appln. No. 4813 of 2017




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
          AURANGABAD BENCH, AT AURANGABAD.       

           Criminal Application No. 04813 of 2017     

                                     District : Aurangabad




1. Arjun Haribhau Bhivsane,
   Age : 61 years,
   Occupation : Nil,
   R/o. Room No.411, 
   Build.-2, co-op.
   Suraksha Hou. Society,
   Mhada Colony, Vashi Naka,
   Chembur (East), Mumbai.

2. Mathurabai Arjun Bhivsane,
   Age : 55 years,
   Occupation : Nil,
   R/o. Room No.411,
   Build.-2, co-op.
   Suraksha Hou. Society,
   Mhada Colony, Vashi Naka,
   Chembur (East), Mumbai.

3. Vilas Arjun Bhivsane,
   Age : 37 years,
   Occupation : Service,
   R/o. Narayan Nagar
   Zopadpatti (B),
   Mahatma Phule Nagar,
   P.L. Lokhande Marg (N),
   Chembur, Mumbai. 

4. Aashvini Vilas Bhivsane,
   Age : 28 years,
   Occupation : Nil,
   R/o. Narayan Nagar
   Zopadpatti (B),
   Mahatma Phule Nagar,
   P.L. Lokhande Marg (N),
   Chembur, Mumbai. 
     (Judgment)                (2)     Cri. Appln. No. 4813 of 2017



5. Mangesh Arjun Bhivsane,
   Age : 29 years,
   Occupation : Service,
   R/o. Mahatma Phule Nagar,
   P.L. Lokhande Marg, Chembur,
   Mumbai. 

6. Manisha Mangesh Bhivsane,
   Age : 25 years,
   R/o. Mahatma Phule Nagar,
   P.L. Lokhande Marg, 
   Chembur, Mumbai.

7. Shamrao Govinda Vahul,
   Age : 62 years,
   Occupation : Labour,
   R/o. at post Pimpalgaon,
   Taluka Sillod,
   District Aurangabad. 

8. Anusaya Shamrao Vahul,
   Age : 56 years,
   Occupation : Labour,
   R/o. at post Pimpalgaon,
   Taluka Sillod,
   District Aurangabad. 

9. Suvarna Ranjit Dandge,                .. Applicants
   Age : 38 years,
   Occupation : Nil,
   R/o. 7/14, Mahatma Phule
   Nagar, P.L. Lokhande Marg,
   Chembur, Mumbai. 

          versus

1. The State of Maharashtra. 

2. Priya w/o. Kailash Bhivasane,
   Age : 26 years,
   Occupation : Household,               .. Respondents. 
   R/o. Aanand Park, Sillod,
   Taluka Sillod,
   District Aurangabad. 

                        ...........
       (Judgment)                 (3)       Cri. Appln. No. 4813 of 2017




     Application of applicant nos.01, 02 and 09 rejected
     as not pressed, as per Court's order dated 19.09.2017.

                             ...........

      Mr. Bhushan S. Borde, Advocate, for the applicants.

      Mr. A.A. Jagatkar, Additional Public Prosecutor,
      for respondent no.01.

     Ms. Uma S. Bhosle, Advocate (appointed), for 
     respondent no.02. 

                            ************

                    CORAM : T.V. NALAWADE &
                            SMT. VIBHA KANKANWADI,JJ.

DATE : 28TH SEPTEMBER 2018.

JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

01. Rule. Rule made returnable forthwith. By consent, heard finally.

02. Present application has been filed by original accused persons invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, in order to quash the First Information Report vide Crime No. 22 of 2017, registered with Sillod Police Station, Sillod, Dist. Aurangabad for the offences punishable under Sections 498-A323504, read with 34 of the Indian Penal Code. It will not be out of place to mention here that relief claimed by applicants No. 1, 2 and 9 has been rejected by this Court vide order dt. 19-09-2017.

(Judgment) (4) Cri. Appln. No. 4813 of 2017 Hence, the application has been considered only for applicants No. 3 to 8. During the pendency of this application, charge-sheet has been filed vide R. C. C. No. 199 of 2017 before J. M. F. C., Sillod. Applicants have prayed for quashment of the said proceedings also, by way of amendment.

03. Respondent No.2 got married to Kailash Bhivsane on 26-04-2015 at Anand Park, Sillod. Applicants No.1 and 2 are the parents of husband of respondent No. 2. Applicants No.3 is brother of Kailash and applicant No. 4 is the wife of applicant No. 3. Applicant No.5 is another brother of Kailash and applicant No. 6 is the wife of applicant No. 5. Applicant No.7 and applicant No.8 are stated to be relatives of Kailash.

04. Respondent No.2 – informant has contended that, at the time of marriage, domestic articles were given. Her husband and relatives were residing together at Chembur (East), Mumbai. She was taken to Mumbai and treated properly for 8 days after the marriage. Thereafter, applicants No. 1 to 6 and Kailash started saying that her relatives had not honoured them at the time of marriage and proper gifts have not been given. Gold ring has not been given to Kailash. She was kept starved. They used to put latch the bathroom from outside, when she used to take bath. She was driven out of the house at night time.

(Judgment) (5) Cri. Appln. No. 4813 of 2017 Applicant No. 9 used to come on every Sunday and used to abuse her on trifle grounds. Applicants No. 7 and 8 had also gone to Mumbai on 2-4 times and abused, assaulted her on the count of non-fulfillment of demand of gold ring. She had narrated the harassment to her mother, brother and sister. Then she was taken to her mother’s house in June 2015. She was taken back for cohabitation after a meeting at Pandhari, which was attended by husband, applicants No. 4, 5, 7 and 8. Again she was treated properly for one month. All the applicants started harassing her on the same count. She narrated it again to her mother, brother and sister. She was taken back to her mother’s place on 10-06-2016. Applicants No. 1, 2, Kailash, 4, 5, 7 and 8 came on 15-12-2016 to take her back. Again a meeting was called at Pandhari. At that time, Kailash had assaulted her. When her brother went to rescue her, he was beaten by Kailash and his family members who were present there. They gave threat that they will not take her back for cohabitation and she is at liberty to lodge any case. Thereafter, her mother and others had contacted Kailash and others several times for her cohabitation, but all of them refused. She gave complaint application to Mahila Samupdeshan Kendra. Efforts were made for reconciliation, but failed due to applicants. Therefore, she has lodged the report.

05. The applicants have contended that, they have not committed any offence. The FIR has been lodged (Judgment) (6) Cri. Appln. No. 4813 of 2017 only to grab the property of Kailash. Applicants No. 3 to 6 are residing in another area since August 2014. Accused Nos. 7 and 8 are residents of Pimpalgaon, Tal. Sillod, Dist. Aurangabad. They never went to Mumbai. Applicants No. 3 to 8 have no reason to harass respondent No. 2. Respondent No. 2 wanted to kill applicant No. 1 and therefore, he has filed complaint against her with police. FIR has been given just to harass them. Details of the events have not been given and they have been kept as vague as possible. Therefore, they have prayed for quashment of the proceedings.

06. Heard learned Advocate Mr. B. S. Borde appearing on behalf of applicants, learned Addl. Public Prosecutor Mr. A. A. Jagatkar and learned Advocate Mr. U. S. Bhosale, appointed for respondent No.2. All of them have argued in support of their respective contentions.

07. The application was considered only for the allegations against applicants No. 3 to 8. No specific role has been attributed against them in respect of offence under Section 498-A of the Indian Penal Code. If at all there would have been a demand, it would have been mainly by the husband, father-in- law, mother-in-law and applicant No. 9 in particular. The perusal of the entire FIR would show that all the applicants had made the demand in chorus which is not (Judgment) (7) Cri. Appln. No. 4813 of 2017 possible when elders are there. Nothing was demanded by applicants No.3 to 8 for themselves as per the allegations in the FIR itself. Further it is alleged that the demand was of gold ring to Kailash. Charge- sheet is also filed after investigation against all the applicants. Perusal of charge-sheet would show that none of the witnesses have stated any specific role of applicants No. 3 to 8. The exact relation between applicants No. 1 7 and 8 is not stated by them. They can not be ‘relatives’ within Sec. 498A of Indian Penal Code. Applicant Nos. 3 to 8 are residents of other place. That means, they are residing separately from Kailash and respondent No. 2. So, it appears that, as a routine, all the relatives of the husband have been roped. It would be futile exercise to ask applicants No. 3 to 8 to face the trial. Under such circumstance, relief is required to be granted to the applicant No.3 to 8 by invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. Hence, following order.

ORDER

1) Application of applicants No. 3 to 8 is hereby allowed.

2) Relief is granted in terms of prayer only.

3) Application to the extent of applicants No.1, 2 and 9 was dismissed vide order dt. 19-09-2017.

(Judgment) (8) Cri. Appln. No. 4813 of 2017

4) Rule made absolute in the above terms.

08. The fees of the appointed Advocate is quantified at Rs.3000/- (Rupees Three Thousand Only), which shall be paid by the High Court Legal Services, Sub-Committee, Aurangabad.

   ( Smt. Vibha Kankanwadi )        ( T.V. Nalawade ) 
               JUDGE                        JUDGE

                                 ...........

puranik (#) / CRIAPPLN4813.17



                   Digitally signed
                   by Bhagwan
Bhagwan            Govindrao
                   Puranik
Govindrao          Date:
Puranik            2018.10.04
                   11:47:44
                   +0530
Delhi District Court
Also At: 82/5 vs Smt. Aanchal Sharma on 3 October, 2018
      IN THE COURT OF MS. SUNENA SHARMA, ADDL. SESSIONS
           JUDGE-03(SOUTH), SAKET COURTS, NEW DELHI

CA No.195/18

Ravi Shankar Jangid
S/o Sh. Kailash Chandra Jangid
presently R/o Plot no.54, Behind Arora Namkin
Near 12th Road Circle
Jodhpur (Raj.)-342003
Also At: 82/5, Shyam Enclave
Sirsi Panchyawala
Jaipur, Rajasthan
                                                     .....               Appellants

Vs.

Smt. Aanchal Sharma
W/o Sh. Ravi Shankar Jangid
D/o Sh. Vishnu Sharma
R/o C-74/2, Sangam Vihar,
Near Tinu Public School
New Delhi-110080
                                                     .....               Respondent


                                         Date of institution of appeal : 17.05.2018
                                               Arguments concluded on : 01.10.2018
                                                       Date of order   : 03.10.2018

JUDGMENT

1. In this criminal appeal filed u/s 29 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “D.V. Act“), appellant has challenged the impugned order dated 17.04.2018 passed by the court of Ld. MM-02, Mahila Court, South in CC no.3283/17 whereby, Ld. Trial court directed the appellant to pay the interim maintenance to the tune of Rs.1500/- per month each to the aggrieved person i.e. respondent and her minor child. In addition to interim maintenance, appellant was further directed to pay Rs.1500/- per month towards rent to the respondent from the date of order till the disposal of said case.

CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.1/9

2. Though in the present appeal, the appellant has challenged the whole of interim order but during the course of arguments, the counsel for the respondent did not assail the quantum of maintenance granted for the child and challenged the impugned order only to the extent of grant of interim maintenance and rental at the tune of Rs.1500/- each.

3. Though the appeal mentions various grounds for challenging the impugned order but it emerged during the course of arguments that there is no dispute as to the existence of domestic relationship between the parties. The appellant has grievances against the assessment of his income by the trial court and the quantum of interim maintenance and awarding of rental by the trial court as the same is stated to be excessive, arbitrary and unjust on account of the fact that the trial court did not consider the liability of the appellant towards his old ailing mother as well as the fact that the appellant is earning meager income of Rs.7467/- per month and the certificate of income of appellant in this regard was duly placed before the trial court.

4. Counsel for appellant has vehemently argued that the repsondent is a graduate and having done fashion designing course and therefore, she is capable of earning and maintaining herself and hence, not entitled to claim any maintenance from respondent who is earning monthly salary of Rs.7467/- per month. In support of his arugments, he has relied upon the jdugment of Hon’ble Delhi High Court in Rupali Gupta vs. Rajat Gupta, MAT. APP (F.C.) No. 143 of 2014 decided on 05.09.2016. It is further argued that trial court CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.2/9 while granting maintenance and rental for the respondent has not taken into account the actual income of appellant which is very well evident from the salary certificate issued by the employer of appellant.

5. It is further argued that trial court has ignored appellant’s responsibility towards his old ailing mother. Counsel further aruged that the major portion of appellant’s income is spent by him in meeting the litigation expenses as well as travel expenses as the respondent has filed D.V. Act petition as well as FIR u/s 498A IPC and both the said litigations are pending in Delhi for which the appellant has to travel from his work place at Joadpur, where he is living in a rented accommodation. It is further argued that trial court was not justified in taking recourse of Minimum Wages Act especially when as per salary certificate placed on record by the appellant, his monthly income is much less than the income prescribed for a skilled labour in Mimimum Wages Act. It is further argued that even otherwise, the latest notification of Delhi Government fixing the minimum wages for skilled and unskilled labour has already been scraped by Hon’ble Delhi High Court.

6. It is further agued that the respondent is living with his parents but despite that, rental has been awarded in her favour by the trial court that too without there being any proof that she is living in a rented accommodation. The counsel has further challenged the impugned order on the gorund that trial court has not given any independent finding regarding its satisfaction that a prima facie case under D.V. Act is made out and hence, there is no strict compliance of Seciton 23 (4) of DV Act.

CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.3/9

7. Per contra, counsel for the respondent has argued that appellant has placed on record a forged salary certificate and he cannot be allowed to take benefit of said forged document for escaping his liablity to pay maintenance to his wife as per his actual income which is much more than the income disclosed in said salary certificate. It is further argued that D.V. Act specifically provides remedy to claim residence order u/s 19 D.V. Act, wherein the court can direct the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if circumstances so require and in view thereof, there is no illegality in the order of trial court granting rent @ Rs.1500/- per month in favour of respondent.

8. I have given my thoughtful consideration to the contentions raised by both the sides and have also carefully perused the entire trial court record.

9. At the outset, I may note that there are two pre requisite conditions for claiming any relief under DV Act. Firstly, that there existed a domestic relationship between the aggrieved person and the respondent at the time of filing of complaint and secondly, that the aggrieved person was subjected to acts of domestic violence by the respondent. As far as the second condition of cash of domestic violence is concerned, I have carefully gone through the contents of application filed u/s 12 of D.V. Act wherein, various allegations have been raised against the appellant for having subjected the respondent to physical as well as mental cruelty and raising of illegal demand for car and cash of Rs.5 lacs. It is also an admitted position on record, an CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.4/9 FIR u/s 498A/406 IPC on the respondent’s complaint has already been registered against the appellant. In view of said material on record, a prima facie case of domestic violence is clearly made out. The first pre-condition is not a matter of consideration before this court as the relationship of husband and wife between the parties has not been disputed and admittedly, the respondent had stayed in her matrimonial home after her marriage with the appellant till she was allegedly forced to leave the matrimonial house after the incident of 28.04.2015, when she was allegedly given beatings by the appellant and his family members with an intention to kill her.

10. Before considering respective contentions of parties, I may mention here that while fixing an interim maintenance court has to take a prima facie view of the matter and need not to critically examine the respective claims of the parties regarding their respective incomes and assets because for deciding the same the evidence would be required. But, at the same time, an aggrieved person cannot be rendered to lead a life of a destitute till completion of trial. It is also pertinent to note here that as per the dictionary meaning of the word ‘maintenance’, it includes all such means of living as would enable one to live in the degree of comfort, suitable and becoming to his situation of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expenses or other proper cognate purposes.

11. Perusal of impugned order shows that Ld. Trial court has fixed the interim maintenance and rental for the aggrieved person/respondent herein while keeping into account the minimum wages prescribed by the Government of NCT CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.5/9 F.Addl.LC/Lab/MW/2016/466 dated 31.05.2017 wherein the minimum wages for the unskilled, semi skilled and skilled labour is prescribed as 13,584/-, 14,958/- and 16,468/- respectively. However, in this regard, I am of the view that recourse to Minimum Wages Act for ascertaining the income of a person for purposes of awarding interim maintenance for his dependents can be taken only when such person does not place on record any documentary proof of his income. Whereas, in the instant case, the respondent has claimed himself to be working with URSS Tech Services Pvt. Ltd. at their Joadpur Branch and he has claimed his monthly salary of Rs.7467/-.

12. Appellant had also placed on trial court record his appointment letter dated 02.03.2017 issued by URSS Tech Service Pvt. Ltd., wherein his consolidated salary during the probation period of two years is shown to be Rs.8000/- per month. Though the genuinity of said document is yet to be tested but, for ascertaining the quantum of maintenance for the dependents, I am of the view that the trial court was bound to take into consideration said document placed by the appellant for claiming his income to be not more than Rs.8000/- especially when the respondent failed to place any document to the contrary in support of her claim of higher income of the appellant. Courts are not oblivious of the fact that though minimum wages for skilled and unskilled labour have been fixed by State Governments but, those guidelines and provisions are not strictly adhered by the employers. And in the prevailing scenario of mass unemployment, many people have to pick up the jobs at much lower scale of salary. In the instant case, the trial court has relied upon the minimum wages prescribed by the Delhi Government but, completely ignored the fact that the appellant is not the resident CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.6/9 of Delhi as he lives and works in Rajasthan. Even otherwise, the latest notification of Delhi Government fixing the minimum wages for labours at the rates mentioned in the impugned order stands already quashed by the Hon’ble Delhi High Court in W.P. (C) 8125/2016 & CM No.3362/2016 titled as Federation of Okhla Industrial Association (Regd.) vs. LT Governor of Delhi & Anr., decided on 04.08.2018.

13. One more contention has been raised by the counsel for the appellant that the aggrieved person i.e. respondent is a qualified lady as she is a graduate and has also done a course of fashion designing. On the other hand, the said contention has been rebutted by the counsel for the respondent by submitting that respondent is a graduate and though, she had joined the fashion designing course but, she could not complete the same. He further contended that even at the time of her marriage or during the stay in her matrimonial home, the respondent was never employed and even at present, she is unemployed and is totally dependent on her parents.

14. I have gone through the judgment relied upon by the counsel for appellant in Rupali Gupta (supra) but, the same is distinguishable on facts in as much as in said case, both the spouses were highly qualified professionals. Whereas, in the instant case, aggrieved person is a simple graduate. Employment prospects of a B.Tech cannot be compared with a person who is just a graduate. Because of enormous gender disparity prevailing in our society, under representation of women in work force is still a hard reality. Considering said social scenario, it is harder for a woman to secure a job with a decent work environment compatible to her biological CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.7/9 needs.

15. In said circumstances, mere fact that the aggrieved person is a graduate would not dis-entitle her to claim maintenance from her husband who is employed and earning income. In this regard, I further draw support from the judgment of Hon’ble Supreme Court in Shailja & Ors. vs. Khobbanna, AIR 2017 SC 1174; wherein it was held by that “whether the appellant no.1 is capable of earning or whether she is actually earning are two different requirement. Merely because, the appellant no.1 is capable of earning, is not, in over opinion, sufficient reason to reduce the maintenance awarded by the Family Court.” While giving above findings, Hon’ble Apex Court set aside the order of Hon’ble High Court reducing the maintenance and restored the order passed by the Family Court. In view of said position of law and the facts and circumstances of the case, I do not find any merits in said contention raised by the counsel for the appellant.

16. In view of aforementioned circumstances, at this stage, this court assesses the income of the appellant to be Rs.8000/- per month. It is trite law that the family cake of income has to be equally divided according to the number of dependents and the earning member is entitled to two parts of said cake while the other parts have to be distributed one each amongst the other dependent members. Reliance placed on the judgment of Hon’ble Delhi High Court in Annurita Vohra vs. Sandeep Vohra , 110, (2004) DLT

546. It is also an admitted position on record that the father of the appellant is no more and now the appellant is also having the responsibility to maintain his old mother.

CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.8/9

17. Applying the aforementioned formula of apportionment of income, the interest of justice would be best served, if the respondent is granted interim maintenance to the tune of Rs.1000/- per month and Rs.600/- towards rental for an alternative accommodation from the date of filing of petition. While the minor child of respondent shall get the maintenance at the same rate as awarded by the trial court from the date of impugned order. Accordingly, the impugned order stands modified in above terms. The appeal stands partly allowed.

18. TCR be sent back to the trial court alongwith copy of this judgment.

19. Appeals files are consigned to record room.

Announced in open Court on 03.10.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi John Digitally signed by John Doe Date: 2018.10.04 Doe 14:34:01 +0530 CA No.195/18 Ravi Shankar Jangid vs. Aanchal Sharma Page No.9/9

 

Delhi High Court
Ashok Kumar Gupta & Ors vs State (Govt Of Nct Of Delhi) & Anr on 1 October, 2018
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Reserved on: 07th September, 2018
                                Pronounced on: 01st October, 2018

+      CRL.M.C. 4905/2016 & Crl.M.A.20305/2016
       ASHOK KUMAR GUPTA & ORS            ..... Petitioners
                         Through: Mr.Mukul Gupta, Sr.
                         Adv. with Mr.Vibhor Garg,
                         Mr.Tushar Gupta, Mr.Deepanshu
                         Panwar and Mr.Nishank Tyagi,
                         Advs.

                         Versus

       STATE (GOVT OF NCT OF DELHI) & ANR ..... Respondents
                            Through: Mr.Ashish Dutta, APP
                            for State.
                            Mr.Sanjeev    Manchanda      and
                            Mr.Harish Chawla, Advs. for R-2.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                         ORDER

1. On 18.07.2015, sometime before 10.30 a.m., one Chander Shekhar son of Dharampal Singh, aged about 31 years, resident of Mohan Garden, New Delhi was run over by a railway train at a place between railway stations of Shahbad Mohammadpur and Bijwasan, the death statedly being found to be suicidal. First information report (FIR) no.215/15 was registered on 23.08.2015 by police station Sarai Rohilla Railway Station for offence under Section 306 read with Section 34 of the Indian Penal Code, 1860 (IPC) at the instance of Rajnath Singh, brother of the deceased. The police, having concluded the investigation, submitted report under Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC) dated 12.04.2016, followed by supplementary report dated 10.11.2016, with the conclusion that sufficient evidence had not come up against the persons whose complicity in the crime had been alleged.

2. The Metropolitan Magistrate, by his order dated 03.12.2016, did not agree with the abovesaid conclusion and was of the view that prima facie the deceased person had been “deliberately harassed” and “driven to suicide”, the petitioners herein having “deliberately created a situation which left no other option for the deceased but to take his own life” and, on the basis of such impression, took cognizance of the offence under Section 306/34 of the IPC and summoned the petitioners as accused.

3. Feeling aggrieved by the abovesaid order, the petitioners have come up to this court by the petition at hand invoking the inherent power and jurisdiction under Section 482 Cr.PC contending that the order of the Magistrate is perverse, not taking into consideration the facts and circumstances that had been brought to light during investigation, having adopted an approach which was against the settled law vis-à-vis the offence of abetment of suicide and consequently being in the nature of abuse of the process of law.

4. The petition has been resisted by the second respondent (first informant), the State through the Additional Public Prosecutor having taken a neutral stand, leaving the matter to the wisdom, judicial discretion and judgment of the court.

5. The background facts which are substantially not in dispute or which are supported by substantive evidence gathered during investigation and, therefore, irrefutable may be taken note of at this stage.

6. The first to third petitioners are brothers to each other, each of them in their mid-sixties, the fourth petitioner being the son of the first petitioner, all of them being residents of a house in West Punjabi Bagh, New Delhi. They together are engaged in business run in the name and style of Laxmi Float Glass Ltd. with office at A-2/10, WHS, DDA Marble Market, Kirti Nagar, New Delhi. The petitioners being the proprietors of the said business would also visit the said office at Kirti Nagar. Chander Shekhar (the deceased) was working as an employee in the said business, under the petitioners, for more than a decade, statedly in the capacity of a salesman, his responsibilities relating to sales made by the company in various cities or towns of Haryana. Rajnath Singh (the first informant / complainant), the elder brother of the deceased, had also been similarly engaged as a salesman by the said company of the petitioners with office at Kirti Nagar. It appears the company deals in trading of glass and the salesmen were also responsible to ensure the recovery of dues against the sales to other dealers, it being inherent in the said arrangement that the salesman would account for the monies realized from the purchasing dealers.

7. It is alleged by the complainant himself in the FIR that a dispute had arisen between the deceased (employee), on one hand, and the petitioners (employers), on the other, about accounting of certain amount(s) of money which statedly had been collected by the former (deceased) from various dealers. It is also stated by the complainant himself, and his word is echoed (in his statement) by similarly placed employee (Anjani Kumar Singh) that the petitioners had called upon the deceased sometime in the last week of 2015 and had insisted that he rendered the accounts. It is also an admitted case of the complainant in the FIR, and this again finds support from the statement of Anjani Kumar Singh, that the petitioners had also roped in the two of them (complainant and Anjani Kumar Singh), besides certain others, on their persistence for the deceased to account for monies, and towards this end, on 15.07.2015 (investigation showing the tour to have been undertaken on 16th and 17th July, 2015, had taken the deceased along with them to various towns of Haryana (Karnal, Kurushetra, Yamuna Nagar and Ambala) to check the accounts with various dealers which statedly were the ones with whom the deceased had been interacting or from whom he had been realizing the dues relating to sales made through him. It is clear from the averments in the FIR, read in its entirety, that the employers (i.e. the petitioners) suspected that the deceased had committed defalcation of money realized from such dealers by dishonestly mis-appropriating the same for his own use in criminal breach of trust reposed in him by them.

8. According to the report under Section 173 Cr.P.C, on 18.07.2015, at 10:30:48 hrs, telephonic information was received by police control room (PCR) of Delhi Police about a person having been run over by a train in the general area of Sector-23, Dwarka. The information was conveyed by the PCR to police station Sarai Rohilla Railway Station where daily diary (DD) entry no.10A came to be recorded at 10.35 a.m. In the meantime, Mr. Hari Mohan Meena, Station Master had also conveyed report to the police about the incident having occurred near Shahbad Mohammadpur Railway Station. ASI Azad Singh accompanied by Constable Paramjeet set out for the place in question for inquiry. When they reached the place in question near K.M. Pole No.21 /4-5, Up Railway Line, they found the dead body which was eventually identified as that of Chander Shekhar (the deceased). The personal search of the dead body led to recovery of Aadhar Card, Voter-ID card and a hand-written note (described in the case as a “suicide note”). It appears the mobile phone instrument (with SIM no.9250547197) of the deceased was also found at the scene and it also appears that on the basis of the identity established by the documents that were found, contact was established by the police official with Rajnath Singh (the first informant).

9. The first informant, statedly accompanied by his other brother Mukteshwar Singh, reached the place in question and identified the dead body. The inquest proceedings were initiated and the preliminary steps in that regard were taken including by removal of the dead body to mortuary for post-mortem examination. ASI Azad Singh, having undertaken such proceedings, pursuant to DD no.10A, logged the action taken by him vide DD no.14 recorded at 04:00 hours on 18.07.2015 in police post Kishan Ganj.

10. There is no dispute raised as to the cause of death. The allegations in the FIR, as indeed the autopsy report, the evidence gathered (including the photographs of the dead body at the scene) and the statements of the witnesses leave no room for doubt that Chander Shakhar had suffered injuries on account of he being run over by a train and, in absence of any other theory being propounded by anyone, it must be assumed or inferred that the death was suicidal.

11. The hand written note (described as “suicide note”), which statedly was found amongst the personal effects of the deceased at the time of initial police proceedings, and which was recovered and was duly noted in the DD no.14, was sent to Forensic Science Laboratory (FSL), the report of FSL whereupon formed the basis of the supplementary report of the police, the opinion of the hand writing expert, based on comparison with some “admitted writings” made available, being that it was in the hand writing of the deceased. The said note (in vernacular) appears to have been written on a sheet of paper, taken off an exercise book and purports to convey that the author had been working with Laxmi Float Glass Ltd. which company had closed his account even where-after he was being harassed and further that the author was taking such step on account of such harassment.

12. The police proceedings unmistakably show, and the complainant has no different version to offer, that after the initial input (DD no.10A), the first police record was in the form of DD no.14, which is based on a report prepared by ASI Azad Singh respecting the action taken and statement of the complainant recorded for purposes of identification of the dead body. The record also contains similar statement of Mukteshwar Singh, the other brother of the deceased and first informant, such statements appearing in the trial court record (at pages 395-397), alongside the report for inquest proceedings prepared by ASI Azad Singh (being at page 385) and copy of DD entry no.14 (at page 411). It is noted that, read together, the first informant and his brother Mukteshwar Singh in their statements had clearly expressed that they had “no suspicion” against anyone for the death of Chander Shekhar who, according to them, seemed to have taken such extreme step on account of “harassment by the company”, this apparently being with reference to the suicide note, they being privy to its recovery.

13. The report of the police also contains another statement of the first informant recorded on 20.07.2015 by ASI Azad Singh in which he leveled allegations against the four petitioners, his version being that the deceased had been looking after the work of salesman with the petitioners since 2006, dealing with dealers of Haryana but his services had been terminated by the petitioners in June 2015 on the false allegation of discrepancies in the accounts. He also alleged that the deceased had given all the accounts inspite of which he was being harassed by the petitioners by repeated phone calls to him extending threats to involve him in a police case or to get him lifted by gunda elements. He alleged that, feeling pressurized on account of such harassment, the deceased had resumed work with the company (of the petitioners) with effect from 13.07.2015 and had gone and reconciled the accounts by meeting the parties (dealers). While acknowledging receipt of the copy of the suicide note, the first informant, in his statement dated 20.07.2015, further stated that he would give a detailed complaint in writing in due course.

14. On 27.07.2015, the first informant submitted a hand written complaint running into eleven leaves, addressed to the Station House Officer (SHO) of the police station Sarai Rohilla Railway Station. This complaint, received vide diary no.61 dated 27.07.2015, forms the basis of the FIR, registered on 23.08.2015, pursuant to endorsement dated 22.08.2015 by the SHO of the police station.

15. According to the FIR, based on the complaint dated 27.07.2015, the deceased being dissatisfied over there being no increase in the salary by the petitioners had decided in April 2015 to leave their employment. The first informant alleged that since the deceased knew all the secrets of the employers including as to how they would deal in black market, he also being acquainted with their dealers in Haryana, the employers did not want him to leave the job so as to join some other employer. He alleged that the deceased had handed over the entire accounts to the employers on 25.05.2015 and though his dues had been settled by the employers on 30.06.2015, the provident fund and gratuity benefits were withheld. He further alleged that the employers had then started exerting pressure on the deceased, directly or through him (complainant), not to give up the job with threats that he would not be allowed to work for gain in Delhi.

16. Against the above backdrop, on 12.07.2015, the second petitioner allegedly had a talk with the deceased by making a call from the mobile phone (9818146319) of fourth petitioner to the mobilephone (9818693948) of the first informant asking about the accounts and calling him again to the office on 14.07.2015 for certain clarifications. It is alleged that when the deceased came to the office of the company in the morning of 14.07.2015, he was accused of fabrication of accounts, threatened, abused and assaulted. It is also alleged that the deceased offering to explain the accounts again had protested and had told the employers that they could not make him a bonded labourer.

17. The complainant further alleged that, on 15.07.2015, the deceased was again called to the office and, once again, accused and harassed on basis of false accusations of defalcation of money. He alleged that thereafter the (petitioners), the deceased, the first informant and others had set out in two vehicles to the four aforementioned cities of Haryana, where the dealers in question were contacted. According to the complainant, all accounts were fully rendered and no discrepancy could be found in the said exercise. It is alleged that during this effort the second petitioner had also come to be engaged in a physical fight with the witness Anjani Kumar Singh and the deceased was also physically assaulted, the group having eventually returned to Delhi after mid-night intervening 17th and 18th July, 2015.

18. It is also alleged that the deceased was feeling threatened at the possibility of being implicated in a case and being consequentially defamed. The complainant stated that in the morning, at about 8.30 a.m., on 18.07.2015, on being asked. the deceased had told him that he would follow him to the office later. He alleged that, at 9.49 a.m., he had received a telephonic call from the deceased, who was sounding harassed and when the first informant had told him that the employers (petitioners) were asking about him, the deceased had dis-connected the phone. Sometime thereafter, he received a call from the police informing him about the suicide.

19. The report under Section 173 Cr.P.C. which was submitted on 26.04.2016 before the Metropolitan Magistrate would show that during the investigation, amongst others, the statement under Section 161Cr.P.C. of Juhi (wife of the deceased) was also recorded. Her statement would show that the deceased hailed from district Jaunpur (Uttar Pradesh) and that he had left the job with the company of the petitioners having shifted to native village but, upon insistence of the first and second petitioners, through telephonic communication, the couple had returned to Delhi on 07.07.2015 as the employers wanted the accounts to be rendered. She narrated the events that happened after the deceased had resumed duty with effect from 08.07.2015 till the date of suicidal death, more or less on the lines set out in the FIR, this including visits to various towns of Haryana on 16.07.2015 and 17.07.2015.

20. The investigating officer also examined V.K. Singh, resident of Uttam Nagar, landlord of the deceased and his brother (the first informant). A copy of the statement of the former has been submitted by the complainant at the hearing and it is noticed that it was actually in the form of letter addressed to investigating officer submitted under signatures of the said person. Be that as it may, most of what this witness would say was what he had been told to him either by the deceased or by the first informant, clearly he having no personal knowledge of any of the acts of commission or omission of the events which are subject matter of the case at hand.

21. The witnesses examined during the investigation would also include Anjani Kumar, another employee of the petitioners, he being a co-worker of the deceased. His statement reiterated what is the version of the first informant to the effect that the employers had been insisting on accounts to be rendered and, for this purpose, they had taken the deceased to various dealers in Haryana. It is the version of the said witness that the employers did not want the deceased to leave the employment since he was privy to their “black and white” dealings in the business. Anjani Kumar would also disclose that he himself had a grouse against the employers since against the backdrop of the deceased leaving the job, all the responsibilities of the latter had been placed on his shoulders without he being given any monetary raise in wages, it being “practically” not possible for him to take care of the entire market of Haryana on his own. He has also indicated that the employers were in the habit of being abusive which added to the reason of he being disgruntled.

22. According to Anjani Kumar Singh, he with the assistance of the deceased had made sales to the extent of 60 truck loads, on which account incentive to the extent of Rs.7,20,000/- would have become due but the same was not paid. He further stated that against this backdrop, he was also thinking of leaving the job but he was also being pressurised not to do so. He stated that the deceased had given in writing that he had taken Rs.1,40,000/- from the accounts of the company which, according to him, was written at his instance, under duress from the employers, who were levelling false allegations. According to him, the visits to the offices of various dealers in Haryana had not brought out any discrepancy in the accounts and further that during the said visit he and second petitioner had come to be involved in fisticuffs.

23. The investigation had also revealed that besides the deceased, the first informant and the witness Anjani Kumar, there was another employee named Azad Veer, the work of four of them (engaged as salesmen) being under the supervision of witness Ved Prakash who was engaged as sales manager. According to the version of Ved Prakash, the deceased had suddenly stopped coming to the office in the last week of May, 2015, without giving any intimation and that when the accounts were checked based on the inputs from the customers of the area (Haryana) certain discrepancies had come to light. It was against this backdrop that, per sales manager Ved Prakash, the first informant (brother of the deceased) had himself volunteered to him that the deceased be called and the accounts tallied, after talking with the parties in question. As per him, the first informant being an old employee, the second and fourth petitioners (employers) had agreed to the proposal. The witness informed that the tour to the four places in Haryana was undertaken on 16.07.2015 and 17.07.2015 on the suggestion of the first informant and that, during the said visit, the two said employers (second and fourth petitioners) had stayed in Hotel Best Westland while the others (employees) had stayed at another property i.e. Hotel Grace, in Ambala. As per his version, Azad Veer, the other salesman had returned on the first evening itself while the rest had returned to Delhi after visiting Yamunanagar and Hissar on the next day, all having accompanied on the tour voluntarily of their own free will, there having been no occasion for any hot exchange between anyone, the deceased, the first informant and the salesman Anjani Kumar having parted ways (on return journey) in the area of Peeragarhi to go to their respective houses. This part of the version of sales manager Ved Prakash has been confirmed by the other salesman Azad Veer who was also part of the group that had travelled to different parts of Haryana.

24. As per the final report of the investigation, discrepancies in the accounts relating to dealings through the deceased came to light during the inquiries made with the dealers during the afore-mentioned tour. To be specific, the witness Ved Prakash would mention the fact of the deceased having collected Rs.60,000/- and Rs.11,000/- respectively from dealers named Sidhi Vinayak Glass House and Karan Glass House, Ambala Cantt. and having deposited the said amount of money in his personal savings account no. 31611462666 with State Bank of India, Jaunpur, U.P. He also mentioned four cheques bearing nos. 206238 dated 12.09.2012, 427791 dated 07.09.2013, 427854 dated 31.12.2013 and 660304 dated 07.05.2013 for Rs.1 lakh, Rs.75,000/-, Rs.60,000/- and Rs.1 lakh respectively which had been issued by a dealer Shiv Enterprises Ambala which cheques were passed on by the deceased to three other dealers of Hissar, Ambala Cantt and Kurukshetra and he having collected cash thereagainst. The discrepancies in the accounts, as shown by the investigation report, have been confirmed by corresponding entries in the bank account of the deceased and by the statements of dealers named Manjeet, Proprietor of Super Traders, Karnal; Rattan Lal, proprietor of Vishavkarma Glass, Kurukshetra; Ajay Ravi, proprietor of Shri Krishan Kirpa Glass House of Yamunanagar; Jitender Kapoor @ Shiv Kapoor, owner of a shop at Yamunanagar; and Narender Singh Rawat, proprietor of Shiv Enterprises, Ambala.

25. As per the evidence gathered during investigation, the deceased had collected various amounts from these dealers which had not been accounted for by him to the employers (the petitioners), this including the amounts of Rs.45,000/- realised from Super Traders, Rs.15,000/- collected from Vishavkarma Glass, Rs.56,000/- gathered from Shri Krishan Kirpa Glass House, Rs.24,000/- taken from Jitender Kapoor @ Shiv Kapoor and Rs.2,15,000/- from Shiv Enterprises. The petitioners point out that the investigating agency had made independent inquiries from the concerned dealers and the banker to confirm the collection of money by the deceased and contemporaneous deposits of certain amounts in his bank account, reference particularly being made to the reports of Sidhi Vinayak Glass House, Karan Glass House, Shiv Enterprises, Super Traders, Vishvkarma Glass, Sri Krishan Kripa Glass House and Kapoor Glass Palace. Attention was also drawn illustratively to the evidence reflecting deposit of cash amounts of Rs.20,000/-, Rs.4000/-, Rs.20,000/-, Rs.10,000/-, Rs.10,000/- and Rs.7,000/- close on the heels of equivalent amounts realised from Sidhi Vinayak Glass House and Karan Glass House on 05.01.2013, 08.02.2013, 25.04.2013, 30.07.2013, 27.09.2013 and 25.04.2015 in the bank account of the deceased as was confirmed upon scrutiny of the bank statement separately collected.

26. The investigation had also covered the accusations pertaining to pressure allegedly exerted by the petitioners against the deceased through telephonic calls. Upon analysis of the call detail records (CDRs) of the petitioners, on one hand, and of the deceased, on the other, no record of any telephonic contact between them has come to light. The CDRs do reflect contact on several occasions between the fourth petitioner and the first informant during 30.05.2015 to 18.07.2015, calls having been made or received by either of them from each other. The scrutiny of the CDRs of the phone of the deceased would show that the last call received by him, during his life time, was from one Praveen son of Subhash resident of Uttam Nagar who, upon being examined, disclosed that the deceased had taken a loan of Rs.10,000/- which he (Praveen) wanted to be repaid on account of his mother’s illness. The last call made using the said phone was at 09.51 am to the first informant by ASI Azad Singh about the suicidal death.

27. On the basis, inter alia, of the evidence to the above effect, the investigating agency concluded that no proof of the deceased having been subjected to harassment, ill-treatment, misbehavior or torture by the employers had come to light. It found instead that there is evidence to show criminal breach of trust by the deceased in respect of the monies realized by him for and on behalf of the employers from various dealers by its transfer (deposit) into his personal account.

28. Since the investigating agency in its report under Section 173 Cr.P.C., which was followed by submission of the FSL result under the cover of supplementary report presented on 10.11.2016, had indicated that it had not found any prosecutable evidence against anyone for the offence under Section 306 of the IPC, notice was issued to the complainant by the Metropolitan Magistrate, by order dated 26.04.2016. The complainant, in response, filed a protest petition which is essentially reiteration of the allegations made by him in the FIR.

29. The final report of investigation by the police and the protest petition were considered leading to the impugned order being passed by the Magistrate on 03.02.2016. In the initial part of the said order, copious references have been made to the allegations in the FIR and particularly to the visit “for verification of accounts” to the offices of various dealers in Haryana. The reasons why the Magistrate found it a case sufficient to proceed against the petitioners are summarized in (the following paras of) the impugned order :-

“The complainant who is the brother of the deceased and also working in the same company has clearly and categorically stated in his complaint that his brother resigned from job in May, 2015. However, he was neither given his dues nor he was being permitted to work somewhere else. He was repeatedly being harassed and humiliated by the accused persons. The statement of complainant is also endorsed by Chander Shekhar, landlord of the complainant as well as Anjani Kumar, another employee of the same company. Moreover, if the deceased was not being tortured by the accused persons, he had no reason to commit suicide and implicate his employers via suicide note.

When the entire facts and circumstances of the case are taken into consideration, it becomes clear that after deceased decided to leave the job of the company, he was continuously being humiliated and tortured by the accused persons. His gratuity and other dues were not paid. He was also not permitted to work at some other place. He was being repeatedly threatened that he will be implicated in some false case. He was cornered from all angles. Record reveals that the accused persons deliberately created a situation which left no other option for the deceased but to take his own life. Prima facie it appears that the deceased was deliberately harassed and was driven to suicide. Hence, the protest petition is allowed.”

30. It is clear from the above that the Magistrate found the allegations made by the complainant, as supported by the statements of co-worker (Anjani Kumar) and the landlord (wrongly described as Chander Shekhar – this, in fact, being the name of the deceased) to be credible to infer that the deceased had been “cornered” and left with “no other option” so as to be “driven to suicide”.

31. It is trite that it is the duty of the officer in charge of the police station, upon receiving information relating to the commission of a cognizable offence to have it “reduced to writing” – by registering a first information report (FIR) under Section 154 Cr.P.C. and, thereafter, to proceed to carry out an investigation thereinto. The investigation into the case, by exercising the powers vested in the police, eventually leads to, on completion, submission of a report “of investigation” in terms of Section 173Cr.P.C. Such report, may indicate that the evidence that came to be gathered during the investigation was “deficient” for the matter to be taken forward for any criminal action or, conversely, to submit a request, “when evidence is sufficient” to seek cognizance to be taken of the offence that stands made out and for the person responsible for such offence (the accused) to be called “for trial”.

32. This Court in Sunil Kumar Rajput vs. State (Govt. of NCT of Delhi) & Anr., Crl.M.C. 2142/2015, dated 13.09.2018 has observed as under:-

―Undoubtedly when the investigating police submits a report under Section 173 Cr. PC, the prerogative to take an appropriate view in accordance with law rests with the court of cognizance i.e. Metropolitan Magistrate. Again undoubtedly, at such stage, the Metropolitan Magistrate is not bound by the view expressed in the report of investigation submitted by the police. For clarity, it may be added that the Magistrate has a judicial discretion, power and jurisdiction to take a view contrary to the one reached by the investigating police – that is to say even in a case where the investigating police has submitted a report for cancellation or closure (not sending any person for prosecution), the Magistrate can reject the said view and on the basis of available material proceed to take cognizance under Section 190 Cr. PC and to issue process under Section 204 Cr. PC. It is also true that the order taking cognizance, or issuing process, need not be a very detailed or elaborate one. But, it is always desirable that such an order must pass the muster of a judicial order which means the order must show application of mind and, for such tests to be passed, the order must take note atleast of the background facts, albeit briefly, and the reasons why the Magistrate is taking a particular view, specially when it is contrary to what has been recommended to him by the investigating agency.”

33. Albeit in the context of process being issued (under Section 204 Cr.P.C.) on the basis of pre-summoning inquiry on a criminal complaint by the Magistrate, the Supreme Court in the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others [(1998) 5 SCC 749] observed as under:-

―28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.

―xxxx xxxx xxxx xxxx xxxx‖

34. It is the grievance of the petitioners that the Metropolitan Magistrate, while passing the impugned order of summoning has failed to bear in mind the guidance in the above ruling of Pepsi Foods Ltd. (supra). It is also their grievance that the Magistrate has adopted a mechanical approach by selectively going by one-sided version of the FIR and the statements of three persons who were inimically placed, ignoring the voluminous evidence showing such version to be not credible thereby rendering the investigative process meaningless.

In the submissions of the petitioners, the impugned order is perverse and not founded on reliable evidence.

35. It is the argument of the petitioners that the chronology of events, as have been summarized above, show that, besides a vague reference to “harassment” by the employer company, the complainant had expressed that there was “no suspicion” regarding complicity of any person in the suicidal death of his brother (Chander Shekhar) in the first instance, he being supported by his other brother (Mukteshwar Singh) who had also reached the scene of incident at the initial stages. It is submitted that even in the statement recorded on 18.07.2015 and again on 20.07.2015, no allegations in the nature mentioned above were levelled, particularly about physical assaults, torture or threats of false implication in a police case, the position taken being that the deceased had left the employment in April, 2015, his accounts having been settled, though some dues withheld.

36. It is argued that the case of abetment of suicide by instigation, or intentional aid, by acts of commission or illegal omission, set up by the complaint in writing dated 21.07.2015, is motivated and a materially improved version, it being such as cannot be given any credence, particularly against the backdrop of fact that the complainant and two witnesses in his support stand belied in the claim that no discrepancy could be detected, upon verification of accounts of the dealers, the evidence gathered during the probe instead showing a series of defalcation by the deceased.

37. Reliance is placed on rulings of the Supreme Court reported as State of AP vs. Punati Ramulu & Ors. 1994 Supp (1) SCC 590; Amar Nath Jha vs. Nand Kishore Singh Criminal Appeal Nos. 94-97/2013; and ruling of a division bench of this Court in Budhan Singh & Ors. vs. State (Through N.C.T. of Delhi) 2008 (2) JCC 1017 and a division bench of the High Court of Bombay reported as Dhondiram vs. State of Maharashtra & Ors. 2016 SCC Online Bom 3078, to argue that there is no case of abetment of suicide made out on which the petitioners could be summoned.

38. As noted earlier, the suicide occurred on 18.07.2015. The statement of the first informant had been recorded during the inquiry on the same day at the scene of occurrence. The informant was thereafter again examined by the police official on 20.07.2015. If the offence of abetment of suicide had been committed, the criminal law stood set in motion either by the statement of the first informant on 18.07.2015 or at least by the statement recorded on 20.07.2015. Those were the initial inputs, they being in the nature of “information” of a cognizable offence within the meaning of Section 154 Cr.P.C.

39. If it were so, the complaint in writing submitted under his signatures by the first informant on 27.07.2015 would be a statement presented in the wake of the said first information and consequently hit by the provision contained in Section 162 Cr.P.C.[ Punati Ramulu & Ors. (supra). Conversely, if the statements made on 18.07.2015 and 20.07.2015 are treated as incomplete, or deficient, or cryptic, andconsequently not actionable, the complaint submitted on 27.07.2015 which formed the basis of the FIR, turns out to be a materially improved version. As observed by the Supreme Court in Amar Nath Jha (supra), “the non-reporting of essential facts which were known to the informant” requires to be borne in mind and though the FIR “need not be encyclopedia of the crime‖, it is well-settled that the “absence of certain essential facts, which were conspicuously missing in the FIR, point towards suspicion that the crime itself may be staged‖.

40. Recording disapproval of belated complaint submitted after “deliberations‖ in Punati Ramulu & Ors. (supra), the Supreme Court ruled as under:-

―5. According to the evidence of PW 22, Circle Inspector, he had received information of the incident from police constable No. 1278, who was on ‗bandobast’ duty. On receiving the information of the occurrence, PW 22 left for the village of occurrence and started the investigation in the case. Before proceeding to the village to take up the investigation, it is conceded by PW 2 in his evidence, that he made no entry in the daily diary or record in the general diary about the information that had been given to him by constable 1278, who was the first person to give information to him on the basis of which he had proceeded to the spot and taken up the investigation in hand. It was only when PW 1 returned from the police station along with the written complaint to the village that the same was registered by the Circle Inspector, PW 22, during the investigation of the case at about 12.30 noon, as the FIR, Ex. P-1. In our opinion, the complaint, Ex. P-1, could not be treated as the FIR in the case as it certainly would be a statement made during the investigation of a case and hit by Section 162 CrPC. As a matter of fact the High Court recorded a categorical finding to the effect that Ex. P-1 had not been prepared at Narasaraopet and that it had ―been brought into existence at Pamaidipadu itself, after due deliberation‖. Once we find that the investigating officer has deliberately failed to record the first information report on receipt of the information of a cognizable offence of the nature, as in this case, and had prepared the first information report after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would have stopped to fabricate evidence and create false clues. Though we agree that mere relationship of the witnesses PW 3 and PW 4, the children of the deceased or of PW 1 and PW 2 who are also related to the deceased, by itself is not enough to discard their testimony and that the relationship or the partisan nature of the evidence only puts the Court on its guard to scrutinise the evidence more carefully, we find that in this case when the bona fides of the investigation has been successfully assailed, it would not be safe to rely upon the testimony of these witnesses either in the absence of strong corroborative evidence of a clinching nature, which is found wanting in this case‖.

41. Be that as it may, the offence of ―abetment of suicide‖ is made punishable by Section 306 IPC which reads thus:-

―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‖.

42. As held in Sangarabonia Sreenu vs. State of Andhra Pradesh (1997) 4 SCC 214, the basic constituents of the offence under Section 306 IPC are “suicidal death and abetment thereof‖. As explained in M. Mohan vs. State AIR 2011 SCC 238, the word “suicide” is coined by two expressions they including “sui” which means “self” and “cide” which means “killing”, thus implying an “act of self-killing”. To put it simply, the person committing suicide must commit it by himself irrespective of the means employed by him in achieving his object of killing himself.

43. As noted earlier, there is not the least any doubt that Chander Shekhar committed suicide by coming under the wheels of a running railway train in the morning of 18.07.2015. This satisfies one of the ingredients of the offence made punishable under Section 306 IPC. But, the moot question to be addressed is as to whether there is any person responsible for “abetment of the said suicide”.

44. The expression “abetment” is defined by Section 107 IPC which reads thus:-

―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‖.

Explanation1 – 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.

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 facilitate the commission thereof, is said to aid the doing of that act.‖

45. In the context of offence of abetment of suicide, the intention of the person accused “to aid” or ” to instigate” the deceased to commit suicide has been always treated to be an essential or a pre- requisite. The case of Mahendra Singh & Anr. vs. State of M.P. 1995 Supp (3) SCC 731 involved suicidal death of a married woman against the backdrop of allegations constituting the offence of cruelty punishable under Section 498A IPC. The dying declaration relied upon by the prosecution seemed to indicate that the deceased had been subjected to “harassment”. Rejecting the charge of abetment of suicide “merely on the allegation of harassment to the deceased”, the Supreme Court observed thus:-

―2. … Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased‖.

46. In Ramesh Kumar vs. State of Chhattisgarh (2001) 9 SCC 618 in support of the charge for the offence under Section 306 IPC, reliance had been placed on the dying declaration of the deceased woman about quarrel between her and the husband (accused) preceding the incident wherein she had set herself afire. The court examined different shades of meaning of “instigation” and observed:-

―20. Instigation is to goad, urge, forward, provoke, incite or encourage to do ―an act‖. To 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. The present one is not a case 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. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.‖

47. Holding in the factual background of that case the accusations to be unsustainable, the Supreme Court ruled thus:-

―A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.‖

48. The case reported as Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 also involved the offence of abetment of suicide. The Court examined the aspect of “abetment”, having regard to the dictionary meaning of the words “instigation” and “goading” thus:-

―17. Thus, to constitute ―instigation‖, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by ―goading‖ or ―urging forward‖. The dictionary meaning of the word ―goad‖ is ―a thing that stimulates someone into action; provoke to action or reaction‖ (see Concise Oxford English Dictionary); ―to keep irritating or annoying somebody until he reacts‖ (see Oxford Advanced Learner’s Dictionary, 7th Edn.).‖

49. The court then ruled thus :

―20. In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.‖

50. In Sanju @ Sanjay Singh Sengar vs. State of M.P. (2002) 5 SCC 371, the deceased was the husband of the sister of the appellant. The relations between the deceased and his wife had been strained, the appellant having allegedly threatened and abused the deceased by using filthy words, during a quarrel that had taken place two days prior to the commission of suicide. Expounding on the width and scope of Section 107 IPC, it was observed:-

―6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he firstly, 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‖.

51. It was further observed:-

―12. … The word ―instigate‖ denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion…‖

52. In the case of Sanju @ Sanjay Singh Sengar (supra) also, the prosecution had, inter alia, relied on a suicide note left behind by the deceased. Referring to the factual matrix of the said case, in general, and construing the suicide note, in particular, the Supreme Court held thus:-

―14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not the handiwork of a man with a sound mind and sense. Smt Neelam Sengar, wife of the deceased, made a statement under Section 161 CrPC before the investigation officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26-7-1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25-7-1998 and if the deceased came back to the house again on 26-7-1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7-1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of ―abetment‖ are totally absent in the instant case for an offence under Section 306 IPC. It is in the statement of the wife that the deceased always remained in a drunken condition. It is common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25-7-1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death‖.

53. Ruling that in such cases as involved allegations of abetment of suicide, there should be “intention to provoke, insight or encourage the doing of an act by (the deceased)‖, it was held:

―16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words ―instigation‖ and ―goading‖. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances‖.

54. Taking a similar view, as above, in its decision in the case of Gangula Mohan Reddy vs. State of Andhra Pradesh (2010) 1 SCC 750, the Supreme Court further held:

―17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.‖

55. The law to above effect was reiterated in S.S. Cheena vs. Vijay Kumar Mahajan & Anr. (2010) 12 SCC 190, wherein the Supreme Court, while tracing the law as declared in Ramesh Kumar (supra) and Chitresh Kumar Chopra (supra), also took note of the caution administered in an earlier case reported as State of West Bengal vs. Orilal Jaiswal (1994) 1 SCC 73 to the following observations:-

―17. … The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.‖

56. In S.S. Cheena (supra), the Supreme Court ruled thus:-

―25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.

26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-

to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation‖.

57. In Madan Mohan Singh vs. State of Gujarat & Anr. (2010) 8 SCC 628, the person who had committed suicide, was employed as a driver, under the person who was accused of abetment of such suicide on the basis of allegations that the latter would harass him by calling him upon to run his private errand, rebuking him for no fault and threatening him with suspicion. The deceased had left behind a suicide note wherein he had expressed anguish with his superior (the accused) accusing him of having “wronged” the former (the deceased). Based, inter alia, on the contents of the said suicide note, the widow had lodged the FIR accusing the petitioner before the Supreme Court of “bias” and having intentionally insulted her husband in front of the staff, this having led to the husband having got “depressed” and committing suicide. The superior against whom allegations had been made (i.e. the accused) had approached the High Court to pray for quashing of the FIR, invoking its inherent power and jurisdiction under Section 482 Cr.P.C. on the ground that the proceedings arising out of such complaint, translated into FIR, were in the nature of abuse of process of law. The prayer was rejected by the High court and the matter was taken to the Supreme Court. Argument was raised that the court “should not go into the merits of FIR” or the “suicide note”. The Supreme Court rejected the contentions observing that FIR and suicide note required to be “closely examined” to ascertain if there was “some material” rendering it a proper complaint. Holding that “the baseless and irrelevant allegations” could not be used as a basis for prosecution for a serious offence under Section 306 IPC and observing that there was “no nexus” between the suicide and the so-called suicide note – its contents not depicting or ” expressing anything intentional on the part of the accused‖, it being a rhetoric document, the proceedings arising out of the FIR were quashed on the following reasoning:-

―13. … 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 the 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 v. State of W.B. , this Court had quashed the proceedings initiated against the accused‖.

58. In reaching the above result, the Supreme Court also observed thus:-

―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‖.

59. In Gurcharan Singh Vs. State of Punjab (2017) 1 SCC 433, it was observed thus :-

―21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306IPC, thus criminalises the sustained incitement for suicide.‖

60. Studies have shown that suicide or suicidal behaviours may occur for a variety of reasons, each mostly concerning the mental state of mind of the person taking such extreme step, the causes including depression, fear of social problems or challenges, bipolar disorder, stress related economic, social or other aspects of life etc. [see 2014 Report of National Crime Records Bureau]. In Mohd. Hoshan, A.P. and Anr. vs. State of Andhra Pradesh, (2002) 7 SCC 414, the court analyzed the reason for commission of suicide by a married woman against the backdrop of she having been subjected to mental cruelty in the matrimonial home taking into account various factors like sensitivity of the individual victim, social background, environment, education, level of endurance, etc. Similarly in Sharad Birdhichand vs. State of Maharashtra, (1984) 4 SCC 116, the court took note of the celebrated work titled “Death, Society and Human Experience” authored by eminent psychiatrist, Robert, J. Kastenbaum to observe, inter alia, that the circumstances, moods or emotions may drive a person to become psychotic or severely disturbed so as to commit suicide, sense of dis-satisfaction or frustration or, at times, even the objective of revenge goading a person in such direction.

61. In cases where the element of revenge is palpable from the facts and circumstances attendant upon the commission of suicide, particularly where such motive is declared by a suicide note, the victim leaves no room for doubt that he proceeded in such direction impelled by deep sense of bitterness, grudge, hostility or animus, this requiring the possibility of his wisdom being clouded and consequently the credibility of his suicide note necessitating close scrutiny.

62. It is well settled that in order to prosecute a person on the charge of abetment of suicide of another, there must be evidence presented to show the requisite mens rea and this requires proof of commission of certain act(s) with the “intention‖ to push the deceased into a position that he commits suicide. The act(s) may take the shape of providing intentional aid to the doing of certain acts that lead to the suicide or by instigation. The “instigation” may be by offering provocation, incitement, urging, encouraging, goading or stimulating into action. To put in simply, commission of suicide must be the intended objective to be achieved by the person accused of abetment. While examining the culpability, the court would undoubtedly discount hyper-sensitivity to ordinary petulance, discord or differences as happen in day-to-day human interaction. In case of suicide of a married women in certain circumstances there may be raised presumption of “abetment” (in terms of Section 113-A of Evidence Act, 1872). But, in other cases involving allegations of abetment of suicide, the court must search for evidence of aiding or instigation etc. Further, the court must bear in mind the evidence as to mental state of the deceased while construing the other material, particularly the suicide note, if any. The live link or nexus is to be generally judged by contiguity, continuity, culpability and complicity.

63. The widow (Juhi) of the deceased, in her statement, has not been specific as to the period around which the deceased had “left the job” in the company of the petitioners so as to shift to his native village. In his second statement to the police, recorded on 20.07.2015, the first informant had indicated that the services of the deceased had been “terminated” by the employers. However, in the complaint dated 27.07.2015, which formed the basis of the FIR, he changed the version by claiming that the deceased had “decided” in April, 2015 “to leave” the employment of the petitioners. Be that as it may, from the statements of all the witnesses, it is clear that the employment had continued till date of the suicide, the deceased having remained absent for sometime and then reported back in June, 2015 for rendition of accounts. Pertinent to note here that the first informant, brother of the deceased, and the other witness Anjani Kumar Singh (co-worker) had also continued to be in the employment of the petitioners at least till 18.07.2015, on the morning of which Chander Shekhar opted to die by coming under the wheels of a railway train. This is a conduct not jelling with grievances which were raised nine days after the death. Though these witnesses do speak about ill treatment meted out to the deceased by the employers in the preceding weeks, it is clear that they had made no protest nor lodged any complaint with any authority in such regard, their endeavour throughout being to assist the deceased in demonstrating that he had not indulged in any mis-appropriation. On the contrary, they continued in their jobs till the very last. The allegations made after the event seem to be product of afterthought. There is a very high probability that the allegations of physical assaults or threats to lodge police case against this backdrop, leveled for the first time on 27.07.2015, through the complaint in writing were “staged”. [see Amar Nath Jha (supra)].

64. There is not a whisper of allegation in any part of the evidence presented before the Metropolitan Magistrate to the effect that the petitioners had at any stage instigated, provoked, incited, urged, encouraged or stimulated the deceased to kill himself. They were interacting with him, even as per the version of the first informant and other witnesses of the preceding events, not directly, but through his brother (first informant) and invariably, and always, in the presence of others. It is also vivid from the material gathered that the sole objective of the petitioners was to compel the deceased to render the accounts for the monies that he had collected on their behalf from various dealers in the different towns of the State of Haryana. The statement of sales manager Ved Prakash clearly shows that the petitioners had agreed to go and visit the offices of various dealers for such purpose, alongwith the deceased and other employees, for the reason that they were inclined to adopt a soft approach towards “an old employee”, whose brother had also served them for more than a decade. As noted earlier, evidence has come forth to show that certain cash deposits were made in the personal savings accounts of the deceased which were contemporaneous to the collections made by him from various dealers of Haryana for and on behalf of his employers, this rendering such credits to be ex facie suspect, he having no other known source of income. No explanation worth the name with regard to such serious incriminating material against the conduct of the deceased has been offered by his brother (first informant), co-worker (Anjani Kumar Singh) or his widow (Juhi). This circumstance, in fact, renders their version that no discrepancy came to light during the tour of various towns in Haryana, a few days prior to the suicide, in very poor light.

65. In the document described as suicide note, the deceased very cryptically accused the company which had employed him to be responsible for the extreme step that he was (about) to take, he having been “harassed”. The note is conspicuously silent with regard to the cause for harassment or result of the tour that had been undertaken to the offices of various dealers and the revelations that had been made during such visits. The document reflects at best the perception of the author and his decision to kill himself. The mental state, possibly stemming from frustration at not being able to account for money to the employers, seems to have brought the deceased to the precipice. Bitterness towards employers is discernible from the document. The omnibus expression used, intended to rope in the proprietors of the “company” collectively, even though there is no evidence of participation in his interrogation by some of them, gives away the objective of the author to wreck vengeance.

66. Against the backdrop of the fact that there is substantive evidence collected by the police to support the allegation of the petitioners about defalcation of money, the suspicion of the petitioners (employers) in this regard consequently being not unfounded, there was nothing improper on their part to exert pressure on the employee (deceased) to come clean by explaining the accounts and thediscrepancies that had come to their notice. In such fact situation, they (the employers) would have been within their legitimate right to approach the authorities (the police) even for criminal action. It is clear from the evidence that the petitioners were trying to avoid approaching the investigative agency of the State as they had been persuaded to go soft and instead hold in-house inquiry with the aid and assistance of the brother of the suspect employee and other co- workers. The allegations of they having hurled abuses or given slaps to the deceased at the time of his interrogation in the office, in the presence of his brother or other members of the staff, even if believed to be true, howsoever unjust or improper the same may be, cannot become the basis of inference that the intention of the employer(s) was to create a situation where the deceased was left with no other option but to take his own life. The threat to lodge a police case against such backdrop as above can definitely not be treated as illegitimate, not the least a reason to assume that the intention was to drive the person suspected of criminal breach of trust to commit suicide.

67. In State of Haryana Vs. Bhajan lal, 1992 Supp (1) SCC 335, while summarizing the principles of law governing the exercise of the inherent power under Section 482 Cr. PC, to prevent abuse of the process of court or otherwise to secure the ends of justice, the Supreme Court included amongst illustrations where such power could be invoked to bring an end to the criminal prosecution, cases where “the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.”

[also see R.P. Kapur vs. State of Punjab, (1960) 3 SCR 388 and State of West Bengal Vs. Swapan Kumar Guha, (1982) 1 SCC 561].

68. On the afore-stated facts, and in the circumstances, there is no live link or nexus between the acts of commission or omission attributed to the petitioners vis-à-vis the deceased and the act of the latter resulting in his suicidal death. The Metropolitan Magistrate while examining the final report of police negativing the case of the complainant, alongside the protest petition, seems to have formed an impression on selective reading of one-sided version in the FIR. The order issuing process not having taken into account the voluminous evidence to the contrary is perverse and, therefore, cannot be upheld. There being nothing in the evidence presented to support the impression of the Magistrate that the deceased had been left by the petitioners with no other choice but to kill himself, it would be unjust to call upon them to face the prosecution on accusations which are imaginary rather than real.

69. In the result, the impugned order dated 03.12.2016 of the Metropolitan Magistrate is set aside. The proceedings initiated against the petitioners in the matter arising out of the FIR no.215/2015 of police station Sarai Rohilla Railway Station are hereby quashed.

70. The petition and the application filed therewith are disposed of in above terms.

(R.K. GAUBA) JUDGE OCTOBER 01, 2018 ysn

Bombay High Court
Pramod S/O. Madhav @ Mahadu Bedre @ … vs The State Of Maharashtra And Anr on 5 October, 2018
Bench: T.V. Nalawade
                                              1                                

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

            CRIMINAL APPLICATION NO. 1739 OF 2018

1)    Pramod s/o Madhav alias Mahadu Bedre
      alias Bendre,
      Age 44 years, Occupation Agriculture,
      R/o Village Hivara Tq. Kalamnoori
      Dist. Hingoli.

2)    Madhavrao s/o Shankarrao Bedre,
      Age 65 years, Occupation and
      R/o as above.

3)    Kashibai w/o Madhavrao Bedre,
      Age 54 years, Occupation and
      R/o as above.

4)    Kishor s/o Madhavrao Bedre,
      Age 28 years, Occupation Agriculture,
      R/o as above.

5)    Nagorao s/o Sangamnath Digrase,
      Age 42 years, Occupation Agricultural,
      R/o Shivshankar Nagar, Kurunda,
      Tq. Vasmat Dist. Hingoli.

6)    Archana w/o Nagorao Digrase,
      Age 34 years, Occupation Household,
      R/o as above.                                                               ...Applicants

      Versus

1)    The State of Maharashtra
      Through the Officer Incharge,
      Vimantal Police Station,
      Nanded Tq. Dist. Nanded.

2)    Nikita w/o Pramod Bedre,
      Age 37 years, Occupation Secretary
      of Saraswati Vidya Niketan,
      Vasmat R/o Bhosikar House,



::: Uploaded on - 09/10/2018                                       ::: Downloaded on - 10/10/2018 00:20:16 :::
                                                 2                                

        Near Mayur Talkies, Naik Nagar,
        Nanded, Tq. Dist. Nanded.                                                   ...Respondents
                                      ----

Mr. R. S. Deshmukh, Advocate for applicants.

Ms. D. S. Jape, Addl. Public Prosecutor, for respondent No.1 / State.

Mr. S. S. Deshmukh, Advocate for respondent No.2.

—-

CORAM : T. V. NALAWADE & SMT.VIBHA KANKANWADI. JJ.

DATE : 05-10-2018.

ORAL JUDGMENT : (Per SMT. VIBHA KANKANWADI, J.)

1. At the outset, learned Advocate for the applicants seeks permission to withdraw the application to the extent of applicant nos.1 to 3.

2. Permission granted. The application stands disposed of as withdrawn to the extent of applicant nos.1 to 3.

3. Rule. Rule made returnable forthwith. By consent, heard finally.

4. Present application has been filed by original accused persons invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure in order to quash the charge-sheet and proceedings in R. C. C. No. 286 of 2018 filed with learned Judicial Magistrate First Class, 6th Court, Nanded, for the offences punishable under Section 498-A377354323504506 read with 34 of the Indian Penal Code arising from First Information Report vide Cr. No. 0211 of 2017 registered with Vimantal Police Station, Nanded.

5. Respondent No.2 got married to applicant No. 1 on 29-01- 2001. Applicant No.2 and 3 are the parents of applicant No. 1. Applicant No.4 is the brother of applicant No. 1. Applicant No. 6 is the sister and applicant No. 5 is the husband of applicant No.6.

6. Respondent No.2 – informant has contended that, she has a son and a daughter out of the wedlock. She is serving as Secretary with an Institution at Vasmat since last three years, prior to the FIR on 02-07-2017. At the time of marriage, her father had given 45 tolas of gold ornaments, 2 kg silver, cash of Rs.10,00,000/-, household articles like fridge, Air conditioner, sofa, cot, washing machine, colour T. V., show-case, dressing table, utensiles. Applicant No. 2 and 3 started picking the errors of informant in doing household work after six months of marriage and insulting her on that count. They were harassing her mentally and physically. Her father-in-law had tried to outrage her modesty in 2006, when other members of the family had gone out. The said incident was disclosed by her to her father on the next day. Therefore, her father had taken her to his house, where she had stayed for about 6 months with her children. Thereafter, her husband came there and started residing there with them. Her husband and she herself had taken a house on rent at Sharadanagar, Nanded in 2008 for the purpose of education of children. She told her husband to bring income from agricultural land as they were in need for the purpose of education of children. Applicant No. 6 and 5 told applicant No. 1 that they will see how her father maintains her and children, since she had gone to reside in the house of father. Applicants No. 2 and 3 had instigated applicant No. 1 and applicant No. 6 refused to give share from the land. On the instigation by other applicants, applicant No. 1 had assaulted her as well as her children. Thereafter they shifted to the rented premises in Anandnagar, Nanded. She was harassed at that place also by her husband. Applicants were raising supicion over her character. They against shifted to the rented premises in Paturkarnagar, Nanded and the harassment continued. All the applicants had given her threat to kill in 2017, when she was in her office. Applicants had forced her to perform pooja for black magic through a Mantrik. Daughter was beaten by applicant No. 1 in 2017. Applicant No. 1 had unnatural sex with her many times, when she had refused, at that time he had tried to strangulate her. Again she as well as her children were beaten by applicant No. 1 in April and May 2017. Therefore, she has lodged the report.

7. The applicants have contended that, the allegations in the FIR are false and frivolous. No such incident had ever taken place as narrated in the FIR. Applicant No. 6 got married to applicant No. 5 on 24-04-1992 i.e. much prior to the marriage of applicant No. 1 and respondent No. 2. They both reside at Kurunda, Tal. Vasamat, Dist. Hingoli. Applicant No. 4 resides separately from applicant No. 1 to 3. Informant desired to establish Society by name Astha Education and Welfare Education Society at Parbhani. The said institution started a school at Vasamat. Applicant No. 1 was President of the Society, but he was removed abruptly. In his place one Abhay Dange has been appointed in 2016. Informant developed intimacy with Abhay Dange, as it is evident from Whats App messages. The FIR is belated. Informant comes from a financially sound family and therefore, not willing to stay at Hivara. Applicant No. 1 had shifted himself at various places as per her desire. The differences arose due to difference in financial status. Perusal of charge-sheet would show that no offence has been made against them. Therefore, they have prayed for quashment of the proceeding.

8. Heard learned Advocate Mr. R. S. Deshmukh appearing on behalf of applicants, learned Addl. Public Prosecutor Ms. D. S. Jape and learned Advocate Mr. S. S. Deshmukh appearing for respondent No.2. When it was pointed out to the learned advocate for the applicants that, this Court is not inclined to grant any relief to applicants No.1 to 3, he prayed for withdrawal of the application as against them.

9. The application was considered only for the allegations against the married sister-in-law applicant No.6, her husband applicant No.5, brother applicant No. 4. Applicant No. 5 and 6 are residing at Kurunda, Tal. Vasamat, Dist. Hingoli. Though applicant No. 4 is also residing at Hivara, no specific role is attributed to him. Applicant No. 5 and 6 got married much prior to the marriage of informant. Their casual visits to the house of applicant No. 2 and 3 can not be taken as premeditated. Further informant herself has stated that she and applicant No. 1, with their children started residing in Nanded since 2008. There was no allegations of demand of money. If at all there would have been a demand it would have been mainly by the husband when he was residing with informant. There are different allegations against father-in-law. The statements of the witnesses are on the same line. Most important point, which requires to be considered at this stage is that both the children have given statement against father. The other allegations against applicants No. 4 to 6 are that they acted in chorus, which can not be taken within the purview of Sec. 498A of Indian Penal Code. So, it appears that, as a routine all the relatives of the husband have been roped. It would be futile exercise to ask applicants No. 4 to 6 to face the trial. Under such circumstance relief is required to be granted to the applicants No. 4 to 6 by invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure. Hence, following order.






                                              ORDER

                     1) Application of applicants                          No.      1   to   3   stands
                        disposed of as withdrawn.

2) Application of applicants No. 4 to 6 is hereby allowed.

3) Relief is granted in terms of prayer clause “C” to the applicants No. 4 to 6 only.

4) Rule made absolute in the above terms.

   (SMT. VIBHA KANKANWADI)                                                 (T. V. NALAWADE)
             JUDGE                                                                JUDGE



vjg/-.





 

Madras High Court
S.A.Margaret Angel vs State Rep By The Inspector Of … on 5 October, 2018
        

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

Dated: 05.10.2018 
                        
Date of Reserving the Order
Date of Pronouncing the Order
01.10.2018 
                     05.10.2018
CORAM   
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH              
Crl.O.P.(MD).No.15407 of 2016 
and 
Crl.M.P.(MD) Nos.7288 and 7289 of 2016  

1.S.A.Margaret Angel 
2.Baby Mary                             ...Petitioners/Accused 1 and 2
Vs.

1.State rep by the Inspector of Police,
   C-5 Karimedu (L&O) Police Station,
   Madurai City,
   (Crime No.352 of 2014)                           ...Respondent/Complaintant
2.Vasantha Mary                             ...2nd Respondent/ De facto         
                                                        Complainant 

PRAYER: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, to call for the records in P.R.C.No.48 of 2016 on the file of the learned Judicial Magistrate No.V, Madurai and quash the same as ilegal, violation of Principles of law.

!For Petitioners         : Mr.K.Samidurai

^For R-1                : Mr.M.Chandra Sekaran  
                          Additional Public Prosecutor
        For R-2         : No appearance         

:Order

This petition has been filed seeking to quash the proceedings in P.R.C.No.48 of 2016, pending on the file of the learned Judicial Magistrate No.V, Madurai.

2.The petitioners are arrayed as A-1 and A-2 in the final report.

3.The case of the prosecution is that the first petitioner was married to one Gerald Raja in the year 2008 and out of the said wedlock, a female child was also born to them. It is the further case of the prosecution that even before the first petitioner married the said Gerald Raja, she had an affair with one Rajesh, who was arrayed as A-3 in the final report. This was questioned by the deceased husband of the first petitioner and on 19.03.2014, the first petitioner went missing and the deceased lodged a complaint before the respondent police. On 23.03.2014, the second petitioner is said to have contacted the deceased over phone and abused him stating that he should not have married the first petitioner and he is incapable of supporting his wife / first petitioner and the first petitioner will live only with the said Rajesh and the deceased should not go in search of the first petitioner and rather he can go and die. The first petitioner had also called the deceased and repeated the same thing that was said by her mother. The deceased not being able to tolerate the insult, is said to have committed suicide on 24.03.2014 at about 10.15 a.m., In the suicide note written by the deceased, he had blamed the petitioners and the said Rajesh for his death.

4.The complaint was given by the second respondent, who is the mother of the deceased and the first respondent had registered a First Information Report under Section 174 of Cr.P.C., Thereafter, the case was investigated and the First Information Report was altered for an offence under Section 306 IPC against all the three persons. A-3 filed a quash petition before this Court in Crl.O.P(MD) No.1175 of 2014 seeking to quash the First Information Report and this Court by an order dated 23.07.2015, quashed the First Information Report insofar as the A-3 is concerned.

5.Subsequently, the respondent police investigated the case and filed a final report against the petitioners for an offence under Section 306 IPC and the same has been taken cognizance by the Court below.

6.It will be relevant to extract the allegation that has been made against the petitioners in the final report, which is as follows:-

khh;fpnul; VQ;ry; fle;j 19.03.2014k; njjp> gfy; 11.00 kzp KjypUe;J fhztpy;iy vd;W b$uhy;L uh$h fhpnkL fhty; epiyaj;jpy; g[fhh; bfhLj;J> njo te;j epiyapy;> 23.03.2014k; njjp ,ut[ khh;fpnul; VQ;rypd; mk;kht[k;> ,t;tHf;fpd; 2tJ vjphpa[khd nggpnkhp nghdpy; b$uhy;Luh$htplk; bghz;l;oia itj;J thH tf;F ,y;iy. cdf;bfy;yhk; vJf;F bghz;lhl;o mts; ,dpnky; ,uhn$\; Tl jhd; ,Ug;ghs;. Mtis njlhnj Koe;jhy;> eP brj;J ngh vd;W ngrpa[s;shh;. 24.03.2014k; njjp> fhiy 08.45 kzpf;F> khh;fpnul; VQ;ry; nghdpy; b$uhy;L uh$htplk; btspehl;L ntiy ghh;f;Fk; ,uhn$\; cld; jhd; thH;ntd;> vd;id fhztpy;iy vd;W Vd; nghyp]py; g[fhh; bfhLj;jha; vdf;F cd;Dld; thH tpUg;gkpy;iy. ,d;W khiy ehd; tUtjw;Fs; eP ,Uf;f TlhJ> brj;J ngh vd;W ngrpa[s;shh;.

thjpapd; kfd; b$uhy;Luh$h 24.03.2014k; njjp fhiy 10.15 kzpf;F nkw;go nkyg;bghd;dfuk; 2tJ bjUtpy; cs;s thjpapd; tPl;od; khoapy; vd; rht[f;F vd; kidtpa[k;> khkpahUk;> uhn$\; Kf;fpa fhuzk; fhty;Jiw eltof;if vLf;f ntz;Lk; vd;W jw;bfhiy fojk; vGjp itj;J J}f;F khl;o ,we;Js;shh;. khh;$pdpy; fz;l vjphpfs; jw;bfhiyf;F J}z;oa Fw;w bray; g[hpe;Js;shh;fs;.

7.It will also be relevant to extract the statement given by the de facto complainant before the police which is as follows:-

vd; kfd; b$uhuy;L uh$h nkw;go jdJ kidtp khh;fpnul; VQ;ry; jhd; capUld; ,Uf;Fk;nghnj mtuJ Kd;dhz; fhjyuhd ,uhn$\; cld; gHfp vdf;F cd;Dld; thH tpUg;gkpy;iy. ,d;W khiy ehd; tUtjw;Fs; eP capnuhL ,Uf;f TlhJ brj;J ngh vd brhd;djhYk; mtuJ khkpahuhd nggpnkhp nghdpy; b$uhy;L uh$htplk; bghz;lhl;oia itj;J thH tf;F ,y;iy. cdf;bfy;yhk; vJf;F bghz;lhl;o mts; ,dpnky; ,uhn$\; Tl jhd; ,Ug;ghs;. mtis njlhnj> eP brj;J ngh vd;w ngrpajhYk; ,uhn$\; jpUkzkhd jd; kidtpa[ld; bjhlh;g[ itj;Js;shnu vd;w kdntjidahYk; nkw;go egh;fspd; Jz;Ljyhy; J}f;F khl;o jw;bfhiy bra;J ,we;Js;shh;. nkYk; ,we;e epiyapy; bjh[[q;fpbfhz;oUe;j b$uhy;L uh$h gpnujk; mUfpy; ?vd; rht[f;F vd; kidtpa[k; khkpahUk; uhn$\; Kf;fpa fhuzk; fhty;Jiw eltof;if vLf;f ntz;Lk;?vd b$uhy;L uh$hthy; vGjg;gl;l fojk; xd;W fple;jJ ,J rk;ge;jkhf eltof;if vLf;f ,sq;nfhuh$; vd;gth; ehd; brhy;y brhy;y vGjpa g[fhhpid nghyP]py; bfhLj;njd;. mJ rk;ke;jkhf tHf;F gjpt[ bra;J ,d;W ,we;j vd;kfdpd; gpnuj tprhuizapd; nghJ jhq;fs; vd;iw tprhhpj;jPh;fs;>

8.The point for consideration before this Court is whether the above allegations made in the final report and the statement given by the de facto complainant, will constitute an offence under Section 306 IPC.

9.It will be relevant to consider two judgments rendered by the Hon’ble Supreme Court, on the facts which are almost similar to the present case.

10.The first judgment of the Hon’ble Supreme Court is in Pinakin Mahipatray Rawal Vs. State of Gujarat reported in (2013) 10 SCC 48. The relevant portions are extracted here under:-

9.The prosecution stand is that the abovementioned letters would disclose the feelings and sufferings of an unfortunate wife having come to know of the love affair between her husband A-1 and his colleague A-2, which ultimately led her to commit the act of suicide.

13.Alienation of affection by a stranger, if proved, is an intentional tort i.e. interference in the marital relationship with intent to alienate one spouse from the other. Alienation of affection is known as ?Heart Balm? action. Anglo-Saxon common law on alienation of affection has not much roots in this country, the law is still in its nascent stage. Anglo- Saxon based action against third parties involving tortuous interference with the marital relationship was mainly compensatory in nature which was earlier available to the husband, but, of late, a wife could also lay such a claim complaining of alienation of affection. The object is to preserve marital harmony by deterring wrongful interference, thereby to save the institution of marriage. Both the spouses have a valuable interest in the married relationship, including its intimacy, companionship, support, duties, affection, welfare of children etc.

14. We notice, in this country, if the marital relationship is strained and if the wife lives separately due to valid reasons, the wife can lay a claim only for maintenance against the husband and if a third party is instrumental for disrupting her marriage, by alienating her spouse?s affection, companionship, including marital obligations, seldom, we find the disgusted spouse proceeds against the intruder into her matrimonial home. Possibly, in a given case, she could question the extent, that such injuries can be adequately compensated, by a monetary award. Such an action, of course, may not protect a marriage, but it compensates those who have been harmed.

15. We are, however, of the view that for a successful prosecution of such an action for alienation of affection, the loss of marital relationship, companionship, assistance, loss of consortium, etc. as such may not be sufficient, but there must be clear evidence to show active participation, initiation or encouragement on the part of a third party that he/she must have played a substantial part in inducing or causing one spouse?s loss of other spouse?s affection. Mere acts, association, liking as such do not become tortuous. Few countries and several States in the United States of America have passed legislation against bringing in an action for alienation of affection, due to various reasons, including the difficulties experienced in assessing the monetary damages and few States have also abolished ?criminal conversation? action as well.

19.Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on. Extra-marital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the explanation to Section 498- A and that A-1 had abetted the wife to commit suicide. We have to examine whether the relationship between A-1 and A-2 amounted to mental harassment and cruelty.

21.This Court in Girdhar Shankar Tawade Vs. State of Maharashtra, examined the scope of the explanation and held as follows : (SCC p.180 para

3) ?3. The basic purport of the statutory provision is to avoid ?cruelty? which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word ?cruelty? as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz.

(i) to drive the woman to commit suicide or (ii) to cause grave injury or

(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of ?cruelty? in terms of Section 498A.?

22. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, this Court held that the concept of cruelty under Section 498A IPC and its effect under Section 306 IPC varies from individual to individual also depending upon the social and economic status to which such person belongs. This Court held that cruelty for the purpose of offence and the said Section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty or harassment in a given case.

23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to ?cruelty?, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-AIPC . Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one?s life. We, on facts, found that the alleged extra marital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.

27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306 the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.

11.The second judgment of the Hon’ble Supreme court is in K.V.Prakash Babu Vs. State of Karnataka reported in (2016) 4 MLJ (Crl) 750 (SC) LNIND 2016 SC 565. The relevant portions are extracted here under:-

15. Slightly recently in Ghusabhai Raisangbhai Chorasiya V.State of Gujarat AIR 2015 SC 2670: (2015) 11 SCC 753: LNINDU 2015 Sc31, the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:-

?True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive a woman to commit suicide, would not be attracted.?

16. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one?s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in a set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. There is no denial of the fact that the cruelty need not be physical but a mental torture or abnormal behaviour that amounts to cruelty or harassment in a given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra- marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.

12.It is clear from the above judgments rendered by the Hon’ble Supreme Court that the mere extramarital relationship, by itself will not amount to a cruelty unless it is of such a nature as is likely to drive the spouse to commit the suicide. In this Case, the deceased husband became hyper sensitive after talking with the petitioners over phone, wherein they had stated that the first petitioner will continue with the illicit relationship and if the husband does not like it, he can go and die. This one phone call had driven the husband to commit the suicide. Sensitivity to ordinary petulance, discord or differences in domestic life should not normally drive a person to commit suicide, unless the person is unduly hyper sensitive. In such a case the accused persons cannot be convicted for an offence underSection 306 IPC. It must be established that there was a strong mens rea to commit the offence under Section 306 IPC and there must be a positive act on the part of the accused to instigate and aid in the commission of suicide. The words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea in order to constitute instigation to commit suicide.

13.It is also relevant to take note of the judgment of this Court in Ananda Sekaran Vs. State by Inspector of Police, K1 Sembiam Police Station, Chennai reported in 2007-1-L.W.(Crl)163. The relevant portions are extracted hereunder:-

A sensitive wife, aggrieved by the ordinary words, said to have been uttered by the husband ?,Ue;jhy; ,U my;yJ brj;JtpL? meaning ‘whether you live or die’, had committed suicide by pouring kerosene, setting ablaze, as spoken by P.W.2 creates a doubt genuinely whether that would come within the meaning of instigation and in my considered opinion ?no? Therefore even assuming that P.W.2’s evidence is true, it fails to prove the ingredients required under Section 107 IPC, leading to 306 IPC or compelling the Court to infer the abetment as contemplated under law. P.W.2 is (was) under the custody of the maternal grandfather or grand mother. Therefore, she is bound to response, to the command of the mother of the deceased. In this view, the evidence given by a child witness without corroboration may not be safe to be acted upon to prove the abetment. Assuming that the oral evidence of P.W.2 is true as said above, it fails in standard to attract the instigation which is primarily needed for abetment.

18.Mr.T.Sundanthiram, the learned Senior Counsel arguing that in the absence of mens rea, in the causal way, if he husband scolded the wife ?to go and die? as in this case, it will not amount to abetment and in aid he relied on decisions of the Apex Court in Ramesh Kumar Vs. State of Chhattishgarh(2002 SCC(Cri) 1088) and Sanju v. State of MP (2002 SCC (Crl) 1141). In the case involved in the first decision, the accused/appellant therein was convicted for the offences under Sections 498-A and 306 IPC, which was challenged. As seen from paragraph-22 of the judgment, in that case also, the accused tried to put off fire and also took the wife to the hospital for treatment, as the facts available in the case on hand. Considering that aspect and the other kind of inconsistency available, the Apex Court has held that there would not have been instigation and the relevant sentences read:

?The conduct of the accused trying to put off fire and taking his wife to the hospital also improbbilise the theory of having abetted suicide?

which dictum deserves to be applied in all force to the case on hand.

19.In the second case, referring the above decision, when the case was dealt with under Section 306r/w 107 Ipc, the Apex Court held that the words uttered in a quarrel or on the spur of the moment such as ‘to go and die’ cannot be taken to be uttered with mens rea and therefore, the person so said cannot be convicted under Section 306 IPC. If the accused had the motive or intention that his wife should die committing suicide on her own, then there must be some instance bringing to surface the mens rea, which is essential as held by the Apex Court. No instance brought to the notice of the Court how the accused entertained mens rea or how and why he should think that his wife should commit suicide for which he should have abetted. If really he had the intention that his wife should die and in that process with mens rea if he had scolded her, ordinarily he would not have gone to the rescue of the wife by putting off the fire, then taking to the hospital as observed by the Apex court and in the normal course, he would have left the house itself, allowing the wife to die, which is not the case admittedly here. Therefore, the mens rea is also absent and this being the position, the conviction appears to be incorrect.

20.In Swamy Prahaladdas V. State of MP (1995 SCC (Crl.) 943) the Apex Court has held when the offence under Section 306 Ipc was challenged, for quashing, when the suicide is not the direct result of the words uttered by the accused, no person could be called to face the trial under Section 306 IPC. In the case involved in the above decision, it seems the accused therein scolded the deceased or remarked ‘to go and die’. Thereafter the deceased went home in a dejected mood committed suicide, which was sought to be brought under Section 306 IPC. Considering the above facts and circumstances of the case, the Apex Court held mere uttering the words ‘go and die’ is not sufficient to bring the offence under Section 306 IPC.

21. In State of Gujarat v. Sunilkumar Kanaiyalal Jain (1997 Crl.L.J.2014) a Division Bench of the Gujarat High Court considering the scope of Section 306 IPC elaborately dealt with abetment, realising the responsibility of the Court also has observed, ?better die today than tomorrow? if had been uttered cannot be said to be the abetment in the eye of law since the words might have been uttered due to outburst of one’s own fatuity or anger or consternation without any intention or knowledge or might be the rude or insulting, not with desire to instigate the person to commit suicide, which principle also could be extended to the above case on hand. By applying the law settled by the Supreme Court to the facts of the case on hand, as well as analysing the evidence available on record and taking into consideration the over all circumstances of the case also after deep consideration, I am of the considered opinion, no offence has been made out under Section 306 IPC.

14.This Court has also considered the similar issue in Sekar Vs. State by Inspector of Police, Tiruchengode Police Station, Namakkal District reported in (2011) 3 MLJ (Crl) 829. The relevant portions are extracted hereunder:-

5. In support of his contention, the learned counsel for the appellant relies on the judgment of the Hon’ble Supreme Court in Swami Prahaladdas Vs State of M.P. Reported in 1995 SCC (Crl.) 943, wherein the Hon’ble Supreme Court has held that mere remark made by the accused to the deceased ‘to go and die’ will not constitute the real abetment to commit suicide as enshrined under Section 306I.P.C. Similarly, the learned counsel relies on yet another judgment of a Division Bench of Gujarat High Court in State of Gujarat VS Sunilkumar Kanaiyalal Jain reported in 1997 Crl.L.J.2014 wherein also, the Division Bench has taken the view that the remarks made by the accused to his wife that ‘it is better for her to die today than tomorrow’ will not constitute abatement as provided under Section 306I.P.C. Following those two judgments, a learned Judge of this Court (Hon’ble Justice Sudanthiram) in Rukmani VS State represented by the Sub Inspector of Police reported in 2008(2) L.W.(Crl) 776 has also taken similar view to say that such words which are uttered during quarrels cannot be given literal meaning so as to say that the accused had abetted the commission of suicide. I am in full agreement with the above judgments.

6. Apart from that, the learned counsel relied on the recent judgment of the Honble Supreme Court in Sontui Rama Krishna VS Sonti Shanti Sree and another reported in A I R 2009 Supreme Court 923, wherein the Supreme Court has held that to constitute the abatement, it should be established by means of acceptable evidence by the prosecution that the accused had the animus to drive the woman to commit suicide. Mere uttering of words ‘ go and die’ itself will not constitute such abetment. Applying the above principles, to assess as to whether the accused really had the animus and had driven the woman to commit suicide, the Court has to take into account the credibility of the circumstances. In this case, as I have already stated, except the evidence to the effect that there were frequent domestic quarrels between the appellant and D.1, there is no other material available on record to show that the appellant had the intention to drive the woman to commit suicide . It is also not on record that the deceased committed suicide because of any abatement on the part of the appellant. Therefore, the conviction of the appellant under Section 306 IPC cannot be sustained as the prosecution has failed to bring home the alleged guilt of the appellant.

15.It is clear from the above judgments that merely because the petitioners told the deceased that he can go and die, that by itself is not sufficient to constitute an offence under Section 306 IPC. In this case, this Court had already quashed the First Information Report insofar as the A- 3 is concerned mainly on the ground that no offence has been made out under Section 306 IPC. This Court is of the considered view that the prosecution has not made out a case against the petitioners for an offence under Section 306 IPC.

16.In the result, the proceedings in P.R.C.No.48 of 2016 on the file of the Judicial Magistrate No.V, Madurai is hereby quashed. Accordingly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.

To

1.The Judicial Magistrate No.V, Madurai.

2.The Inspector of Police, C-5 Karimedu (L&O) Police Station, Madurai City.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

.

 

Patna High Court – Orders
Anil Kumar Verma & Anr. vs State Of Bihar & Anr on 9 October, 2018
                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                                   Criminal Miscellaneous No.1430 of 2016
                     Arising Out of PS.Case No. -39 Year- 2014 Thana -M AHILA PS District- JEHANABAD
                 ======================================================

1. Anil Kumar Verma son of Late Sarju Prasad Verma resident of Mohalla Maurya Vihar Colony, West Side of B.M.P.- 16, P.O & P.S.- Phulwarisarif, District- Patna at Present posted as Branch Manager, State Bank of India, Gardhpura Branch, District- Begusarai.

2. Arvind Kumar Choudhary son of Shyam Narayan Choudhary resident of Village Damodarpur, P.S- Bhawanganj, District- Begusarai the then Accountant, State Bank of India, Gardhpura Branch and District- Begusarai at present Posted at S.B.I. Mansi Branch Manager.

…. …. Petitioner/s Versus

1. The State of Bihar.

2. Rani Devi Wife of Ajay Kumar Bharti Resident of Village- Naima, P.S.- Ghosi (Okari O.P.), District- Jehanabad.

…. …. Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Kaushlendra Kr. Sinha, Adv Mr. Sunil Kr. Singh, Adv.

For the Opposite Party/s : Mr. Ram Anurag Singh (APP) For the OP No.2 : Mr. Subodh Kumar Mishra, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 7 09-10-2018 Heard learned counsel for the petitioners, learned APP as well as learned counsel for OP No.2.

2. Petitioners are aggrieved by an order dated 28.08.2015 passed by Sri A. K. Shukla, Judicial Magistrate-1st Class in Complaint Case No. 674/2015 whereby and whereunder petitioners have been summoned to face trial for an offence punishable under Section 376/34 IPC. At an initial stage showing the date of occurrence to be 14.06.2014, a written report was filed at the end of O.P. No.2, Rani Devi on 20.06.2014 whereupon Jehanabad Mahila PS Case No. 39/2014 was registered underSection 376/34 of the IPC wherein, after concluding investigation, the Investigating Officer had submitted final report divulging the allegation to be untrue. During intermediary stage, protest petition was filed whereupon informant/O.P. No.2 was noticed vide order dated 25.05.2015 and subsequently thereof, vide order dated 10/07/2015, the final report was accepted and the case was directed to proceed on the protest petition treating it to be a complaint registering Complaint Case No. 674/2015 and then thereafter, the matter has been transferred to the court of Amit Kumar Shukla, Judicial Magistrate-1st Class, Jehanabad for conduction of an enquiry as provided under Section 202 CrPC, under Section 92(2) of the CrPC and during course thereof, it is evident that witnesses were examined and lastly, by the order impugned the petitioners have been summoned to fact trial, the subject matter of instant petition.

3. Allegation so attributed against the petitioners is that the husband of the informant is an employee of the State Bank of India and is presently posted at Garhpura Branch, District- Begusarai as an Assitant. Petitioners No.1, Anil Kumar Verma is the Branch Manager while petitioner No.2, Arvind Kumar Choudhary is the Accountant. While Informant was staying with her husband at Garhpura both the accused used to visit as a result of which, they became known to each other. Few days back, informant has come to her Sasural lying at village- Naima where she was staying. Then, it has been alleged that on 14.06.2014 at about 9:00 PM, Anil and Arvind, they both came at her house and said that they have come nearby in order to participate in a marriage ceremony. As night has fallen, so they have come to stay at her house. They both slept in her guest room. At about 11:00 PM, they both called her on the pretext of fetching water whereupon, informant carried a jug full of water with a glass. As soon as, she entered inside the room, she was caught hold of by both of the accused who gagged her mouth, forcibly threw her on the bed and then, committed rape upon her one by one. Then thereafter, they threatened that in case of raising alarm at her end, they will oust her husband from the job as well as will also got him behind the bar. She became silent out of fear as well as shame whereupon, she had not disclosed the event either to her husband or to her father-in-law or mother-in-law. Anyhow, after two days, she informed her mother who informed her husband. Her husband inquired from her and then, he came along with her parents and then, written report has been filed.

4. It has been submitted at the end of both the petitioners that their status has properly been identified. It is further evident that place of posting of petitioners happens to be more than 200 KMs away from the place of informant. It is further evident that none of the witnesses had disclosed including the complainant that petitioners were knowing since before about her native place as well as about her presence. Apart from this, there happens to be absence in the complaint petition to the effect that petitioners have come over vehicle which during course of statement has been introduced though, without any Registration No. It happens to be out and out an imaginable story and the motive for filing of aforesaid case is an intentional one. Husband of the O.P. No.2 has set up the O.P. No.2 to launch this case in order to coerce the petitioners to withdraw themselves with the departmental as well as criminal proceeding having been launched against the husband of O.P. No.2 as, the husband of O.P. No.2 has misappropriated huge amount and for that, petitioner no.1, Anil Kumar Verma had submitted a report on 05.06.2014 whereupon, an enquiry has been set up by the Head Office on 19.06.2014 and petitioner no. 2, Arvind Kumar Choudhary had furnished relevant papers. Considering the same, the husband of O.P. No.2 got the things managed and then, the instant case has been filed on 20.06.2014 showing the date of occurrence as 14.06.2014.

5. Also submitted that the manner whereunder witnesses have made statement before the learned lower court during course of an enquiry on its face, suggest that in order to fabricate a case, they have been improperly utilized.

6. On the other hand, learned APP as well as learned counsel for the O.P. No.2 have submitted that at the time of taking cognizance in accordance with 190 of the CrPC, only prima facie material has to be seen which the learned lower court perceived, found and has passed the order impugned which happens to be in accordance with law. It has also been submitted that the defence of the accused is a subject matter of trial and so, whatsoever plea has been raised at their end, may be a good defence but, not for the present purpose rather for the purpose of the trial. So, the present petition under the banner of Section 482 CrPC is not at all maintainable.

7. After having meticulous examination of the materials available on the record, it is evident that place of occurrence lies within the jurisdiction of Jehanabad. Native place of both the petitioners have not been disclosed. They have been identified as Manager as well as Accountant of the SBI, Garhpura Branch lying within the jurisdiction of Begusarai District. That means to say, accused happens to be outside jurisdiction of the court. In such a situation, how the court has to proceed, Section 202 CrPC takes care of. For better appreciation the same is quoted below:-

“202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,–

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.”

8. The aforesaid eventuality has been subject to consideration before the Hon’ble Apex Court in Aroon Poorie v. Jayakumar Hiremath as reported in (2017) 7 SCC 767 wherein it has been held as follows:-

“The above apart, from the materials on record it appears that the appellant-accused in the present appeals have and maintain residence beyond the local jurisdiction of the learned trial court. Under the provisions of Section 202(1) CrPC, it was, therefore, mandatory for the learned Magistrate to hold an inquiry either by himself or direct an investigation by the police prior to the issuance of process. Admittedly, the same had not been done. If the aforesaid mandatory provisions of Section 202(1) CrPC had not been followed, the learned trial court would not have the jurisdiction to issue process/summons as has been done.”

9. In Parbatbhai Aahir @ Parbatbhai Bhimsinghbhai v. State of Gujarat as reported in (2017) 9 SCC 641, the mode of exercise of power vested to the High Court under Section 482 of the CrPC after discussing the earlier decisions culled upon under para-16 which is as follows:-

16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

16.2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;

16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions (16.8) and (16.9) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

10. In Ashok Kumar Gupta v. State of Uttar Pradesh as reported in (2017) 11 SCC 239 wherein, though cognizance has been taken under different sections but, after steps having been taken at the end of petitioner against the complainant for initiation of criminal proceeding and in the aforesaid background, it has been held as follows:-

“4. The appellant sought quashing of the said complaint on the ground that the criminal was a counterblast to the notice of dishonour of cheque upon which a summoning order had been passed and proceedings under Section 138 of the Negotiable Instrument Act 1881 were initiated by the appellant. The appellant relied on notice of dishonour, a copy f Criminal Complaint No. 135 of 2010 filed on 16.10.2010 and order of the Court dated 04.11.2010. Reliance has been placed on the judgments of this Court in Eicher Tractor Ltd v. Harihar Singh (2008) 16 SCC 763, Mahindra and Mahindra Financial Services Ltd v. Rajiv Dubey (2009) 1 SCC 706, apart from Zandu Pharmaceutical Works Ltd v. Mohd.

Sharaful Haque (2005) 1 SCC 122.

5. It is submitted that while it is true that in quashing proceedings, the Court could not go into disputed version, but in the presence case, the proceedings are clear abuse of process of law.

6. On being asked, the learned counsel for the State fairly stated that the complaint appeared to be absurd. None has entered appearance on behalf the complainant.

7. After hearing the learned counsel for the parties and perusing the records, we are satisfied that the complaint filed by the complainant is clear abuse of the process of law.

8. Accordingly, we allow this appeal and quash the proceedings against the appellant.

11. In similar kind of allegation having been attributed to petitioner, Vineet Kumar in the background of financial dispute having amongst the husband of the complainant as well as petitioner, the Hon’ble Apex Court in Vineet Kumar v.

State of Uttar Pradesh as reported in (2017) 13 SCC 360, after dealing with the factual aspect, proceeded to adjudicate and while quashing the order, decided the ambit and scope of Section 482CrPC. In the facts and circumstance of the case, for better appreciation, the same is quoted hereinbelow:-

22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482Cr.P.C. saves the inherent power 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.

23. This Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the 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. In paragraph 7 of the judgment following has been stated:

“7….In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the 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. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

24. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482Cr.P.C. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice.

25. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:

“102. In the backdrop of the interpretation of the various relevant provisions of the Codeunder Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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.”

26. A three-Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:

“6……All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

27. Further in paragraph 8 following was stated: “8…..Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.”

28. In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14) SCC 244, this Court was considering the challenge to the order of the Madras High Court where Application was under Section 482 Cr.P.C. to quash criminal proceedings under Section 498A IPC andSection 4 of Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings.

29. 25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494120-B and 109 IPC and Section 3 and 4 of Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 Cr.P.C. following was stated in paragraphs 8 to 12:

“8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken.

9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband’s mother’s sister, husband’s brother-in-law and Sunita’s father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6-12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.

10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.

11. “19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” [See Janata Dal v. H.S. ChowdharyRaghubir Saran (Dr.) v. State of Bihar and Minu Kumari v. State of Bihar, SCC p. 366, paras 19-20.]

12. The present case appears to be one where Category 7 of the illustrations given in State of Haryana v. Bhajan Lal is clearly applicable.

12. Then thereafter, the factual aspect has been dealt with right from paras 30 to 40.4 wherein the Apex Court had occasion to see that after initiation of legal action by the petitioner Vineet Kumar, a case of rape has been instituted by the wife later on and further concluded under para-41 which is as follows:-

41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect:

“(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.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings.

13. From the annexure available on the record, it is crystal clear that with regard to criminal activity of the husband of O.P. No.2, the petitioner no.1 had already taken proper steps informing the superior whereupon, departmental enquiry was initiated, followed with institution of a criminal case, pointing out instant prosecution to be frivolous one.

14. As such, the order impugned is set aside. Petition is allowed.


                                                           (Aditya Kumar Trivedi, J)
    perwez

U        T