Ajay Swarup Bansal And Another vs State Of U.P. And Another
2022 Latest Caselaw 13393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 09.09.2022
 
Delivered on : 19.09.2022
 
Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 25521 of 2022
 

 
Applicant :- Ajay Swarup Bansal And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Vipul Kumar Singh,Amit Daga
 
Counsel for Opposite Party :- G.A.,Vikas Sharma
 

 
Hon'ble Ajai Tyagi,J.

1. This application under Section 482 Cr.P.C. has been preferred by applicants, namely Ajay Swarup Bansal and Ashutosh Swarup Bansal challenging the charge-sheet dated 30.10.2021 and entire proceedings in pursuance thereof. It is prayed that aforesaid charge-sheet submitted pursuant to Case Crime No.375 of 2019 (State of UP vs. Ajay Swarup Bansal and another) under Section 306 IPC, Police Station-Nai Mandi, District-Muzaffarnagar, pending in the court of Additional Chief Judicial Magistrate-I, Muzaffarnagar including order of cognizance and summoning of applicants dated 2.4.2022 be quashed.

2. Heard Shri Amit Daga, learned counsel assisted by Shri Vipul Kumar Singh, learned counsel for the applicants, Shri Mithilesh Kumar, learned AGA for the State, Shri Vikas Sharma, learned counsel for opposite party No.2 and carefully perused the record.

3. The facts giving rise to the aforesaid application are that on 10.7.2019 at about 9:00 a.m., elder brother of opposite party No.2, namely, Rajesh Kumar dashed with train at a distance of 2 and 1/2 k.m. from Police Station-Nai Mandi, Muzaffarnagar and died on the spot. Information of this occurrence was given to Station Master, Railway Station, Muzaffarnagar by the driver of the train, who gave written information to Police Station-Nai Mandi regarding accidental death of an unknown person. The entry of information was made in G.D. Police reached at the spot and inquest proceedings on the body of the deceased were conducted on the same day of incident. Postmortem of dead body was also conducted on the same day. A first information report was lodged by brother of the deceased at Police Station-Nai Mandi, Muzaffarnagar on the same day, i.e., 10.7.2019 at about 19:48 hours with the allegations that deceased had given Rs.6,55,000/- to the applicants as a security money to take their shop on rent, but in spite of making the aforesaid payment, applicants did not give the possession of the shop to the deceased nor returned his money. Feeling harassed, ill-treated and tortured as well as threatened by applicants, the deceased had committed suicide on 7.2.2019 on railway-track, leaving behind a suicide-note. The FIR was registered at Case Crime No.375 of 2019 under Section 306 IPC.

4. Investigating Officer at the first stance submitted Final Report in the matter. Protest petition was filed by informant against Final Report and the further investigation was directed by the court. After further investigation, charge-sheet under Section 306 IPC was submitted against both the applicants on which cognizance was taken by learned Magistrate and applicants were summoned for trial. Feeling aggrieved with the aforesaid charge-sheet, cognizance and summoning order, applicants have filed this application under Section 482 Cr.P.C.

5. Shri Amit Daga, learned counsel appearing for the applicants, has made submission that inquest proceedings on the deceased were conducted on the same day of the incident and only driving-licence was recovered from his pocket. No suicide-note was recovered. Suicide-note was brought forward by informant, when he maliciously lodged first information report. It is submitted that it is the averment in the FIR that suicide-note was recovered from the possession of the deceased, but at the time of inquest proceedings only driving-licence was recovered and not suicide-note.

6. It is next submitted by learned counsel that during the course of investigation, it was found that there was no telephonic conversation between the deceased and the applicants since last 15 days of the incident. Learned counsel further submitted that statements of many persons were recorded by Investigating Officer under Section 161 Cr.P.C. and all the witnesses stated that there was no deal between applicants and the deceased for letting out the shop and no money was received by the applicants from the deceased. Learned counsel has invited the attention of the Court towards the statements of independent witnesses, which were recorded during investigation and made submission that all the independent witnesses have stated that the deceased had taken a large amount of money from various people on credit, which was spent by him and due to the aforesaid reason, he was under depression. On the basis of collection of evidence during the examination, it was found that applicants were not responsible for the death of the deceased and I.O. submitted Final Report.

7. It is also contended by learned counsel for the applicants that as far as the suicide-note is concerned, it cannot be relied upon because in first information report, it is alleged by informant that Rs.6,55,000/- were given by the deceased to the applicants as a security money for taking their shop on rent, but neither the shop was given on rent nor the money was paid back, but in suicide-note, there is no mention of giving Rs.6,55,000/- or any amount as a security money by the deceased to the applicants. Rather, the contents of so-called suicide-note are contradictory to the averments of FIR. In suicide-note, it is stated that the deceased had not taken any shop on rent nor he is having possession of any shop. Hence, the theory of prosecution of giving Rs.6,55,000/- to the applicants by the deceased fails. It is also submitted that the wife of the deceased has also given statement to the Investigating Officer stating the theory of giving Rs.6,55,000/- to the applicants, which is also contradictory to the contents of suicide-note.

8. Learned counsel for the applicants vehemently submitted that to constitute the offence under Section 306 IPC, there must be some positive action on the part of the accused, which is proximate to the time of occurrence. Mere harassment without any positive action would not amount to the offence of abetment to commit suicide. Learned counsel has submitted that for the sake of arguments if the prosecution case is admitted as a whole even then no offence under Section 306 IPC is made out against the applicants because on the basis of averments in FIR and contents of alleged suicide-note only the allegation of harassment is surfaced. There is no evidence collected by Investigating Officer that there was any positive action on the part of applicants, which was proximate to the time of occurrence or there was any act of instigation on the part of the applicants. It is also submitted that to constitute the offence under Section 306 IPC, it is necessary that the instigation on the part of the accused was of so grave nature that the deceased was left with no other option, but to commit suicide, which is not the position in present case. If alleged suicide-note is taken as true, there is nothing more than harassment in it. Hence, firstly the Investigating Officer has committed grave error in filing the charge-sheet after further investigation on the basis of the statement of interested witnesses, who were family members and relatives of the deceased and further the court below has committed manifest error in taking cognizance in the charge-sheet and summoning the applicants as accused for facing the trial.

9. Learned counsel for the applicants has relied on following judgments:

(i) Arnab Manoranjan Goswami vs. State of Maharashtra and others, (2021) 2 SCC 427;

(ii) Rajesh vs. State of Haryana, (2020) 15 SCC 359;

(iii) Ude Singh and others vs. State of Haryana, (2019) 17 SCC 301;

(iv) Vaijnath Kondiba Khandke vs. State of Maharashtra and another, (2018) 7 SCC 781;

(v) Gurcharan Singh vs. Sate of Punjab, (2017) 1 SCC 433;

(vi) Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618;

(vii) M. Mohan vs. State Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.

10. It is submitted by learned counsel that in aforesaid judgments, it is held that mere harassment does not come within the purview of instigation as contemplated under Section 107 IPC. In this case also, the contents of suicide-note do not constitute any act beyond harassment, which is not enough to book any person for the offence under Section 306 IPC.

11. Shri Mithilesh Kumar, learned AGA for the State and Shri Vikas Sharma, learned counsel appearing on behalf of opposite party No.2 submitted that the first information report is lodged on the same day of the occurrence and in prompt FIR, there could be no motive for false implication of the accused persons. It is next submitted that the deceased was in talks with the applicants to take their shop on rent for which he had paid Rs.6,55,000/- to the applicants towards security money, but neither he was given possession of shop nor his aforesaid security money was returned. Hence, he committed suicide and during the course of further investigation and in entire investigation, this fact was narrated by the witnesses recorded by the Investigating Officer.

12. Shri Vikas Sharma, learned counsel for the opposite party No.2 made submission that the suicide-note recovered from the possession of the accused was sent to Forensic Science Laboratory, Ghaziabad, for getting the opinion of hand-writing expert and as per the report of FSL, the disputed hand-writing was found similar with the admitted hand-writing of the deceased, therefore, there remains no scope for disbelieving the suicide-note. Hence, it is proved that suicide-note was written by the deceased himself and in that he has mentioned that undue pressure was exerted on him by the accused-applicants with regard to the rent of the shop, which was never let out to him. Hence, the Investigating Officer rightly submitted charge-sheet and learned court below has rightly taken cognizance and summoned the applicants for trial for the offence under Section 306 IPC. Learned counsel for the opposite party No.2 also submitted that at the stage of taking cognizance of charge-sheet, the court has to see whether any prima facie offence is made out against the accused or not and only prima facie offence is to be seen and the defence of the accused is not to be considered at the stage of cognizance. It is also contended that some of the witnesses recorded by Investigating Officer during investigation have not stated correct version of the dealing of shop to be let out to the deceased, but when suicide-note is available then the same will prevail over the statements recorded under Section 161 Cr.P.C.

13. Multifold arguments are advanced on behalf of applicants. It is the case of the applicants that no alleged suicide-note was recovered from the possession of the deceased. It was only driving-licence, which was recovered and suicide-note is fabricated. It is also the case that contents of suicide-note are contradictory to the contents of FIR and statements of deceased's wife and other witnesses under Section 161 Cr.P.C. It is also the submission that independent witnesses did not support the prosecution case.

14. As per the prosecution case, the root cause of the death of deceased by way of suicide is dispute between the applicants and the deceased with regard to the letting out the shop of applicants to the deceased for which applicants had received Rs.6,55,000/- from the deceased and afterwards neither the shop was let out nor the money was returned.

15. Per contra, applicants have put up the case that there was no talk or agreement between them and the deceased to let out any shop to him and they never received the aforesaid amount from the deceased.

16. If this Court goes by the contents of suicide-note in the light of the FIR then it can be transpired that suicide-note also speaks of the dispute with regard to the fact of letting out the shop. This Court is unable to agree with the contention raised by applicants that suicide-note is contrary to FIR because it is not necessary or required that contents of both should be similar because whatever is written in suicide-note depends upon the mental state of person at the time of commission of the suicide. He/she cannot be expected to narrate in suicide-note all the circumstances in detail which led to his/her suicide. Moreover, the circumstances in the backdrop of suicide-note are subject to evidence, which shall be led by the prosecution during the trial.

17. It is next contended by counsel for the applicants that if prosecution case is admitted in its entirety even then no case under Section 306 IPC is made out because mere harassment does not come within the purview of abetment. In support of this argument, learned counsel for the applicants has relied on several pronouncement, which are mentioned in earlier part of this order, but this is a strong circumstance that as per the report of FSL, there is similarity between the hand-writing of suicide-note and admitted hand-writing of the deceased. Hence, the deceased was being merely harassed or he was not left with any other option, but to commit suicide or it was an accidental death as alleged by the applicants are disputed questions of fact, which need evidence to answer. Doors of evidence cannot be shut and opportunity of evidence leading to the circumstances of the death of the deceased should not be closed at the outset. Harassment of the deceased was merely harassment or it was coupled with any positive action and proximate to the time of death are also the questions of fact, which may come out if opportunity to lead the evidence is accorded to the prosecution as well as defence. Hence, the cases on which the applicants have relied upon do not apply to the facts of this case at this stage because prosecution has yet to get opportunity to lead evidence on the aforesaid points.

18. Hon'ble Apex Court in Criminal Appeal No.840 of 2022 with Criminal Appeal No.841 of 2022 (State of Uttar Pradesh and another vs. Akhil Sharda and others) has recently held that at the stage of deciding the application under Section 482 Cr.P.C., mini-trial is not permissible and as observed and held by this Court in a catena of decisions, no mini-trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. In the aforesaid case, Hon'ble Apex Court has considered several cases including State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 and M/S Neeharika, Infrastructure vs The State Of Maharashtra, 2021 SCC Online SC 315. Hence, the decisions in Akhil Sharda (supra) and M/S Neeharika (supra) do not permit this Court to quash the charge-sheet and proceedings of this case.

19. The present application u/S 482 Cr.P.C. lacks merit. It is, accordingly, dismissed.

Order Date :- 19.9.2022

LNTripathi