Kusum Devi And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 7893 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 3934 of 2023
 

 
Applicant :- Kusum Devi And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sachin Mishra,Akash Deep Srivastava,Ayush Mishra,Bala Nath Mishra,Prabha Shanker Mishra,Ram Vishal Mishra
 
Counsel for Opposite Party :- G.A.,Ved Prakash Shukla
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Instructions passed on by the learned AGA today in the Court, is taken on record.

2. Heard Mr. Prabha Shanker Mishra and Mr. Akash Deep Srivastava , learned counsel for the applicants, Mr. Ved Prakash Shukla, learned counsel for the opposite party no.2, Mr. Pankaj Srivastava, learned A.G.A. for the State as well as perused the entire material available on record.

3. The present 482 Cr.P.C. application has been filed to quash the impugned orders dated 02.09.2022 (summoning) and 18.01.2023 (NBW/82/83 Cr.P.C.) as well as the entire proceedings of Criminal Case No.75 of 2022 (State vs. Kusum Devi and others), arising out of Case Crime No.75 of 2022, under Section 306 I.P.C., Charge sheet No.216 of 2022, Police Station-Naini, District-Prayagraj (Allahabad), pending in the court of Chief Judicial Magistrate, Allahabad.

4. The brief facts as enumerated in the application are as follows:-

i) An FIR has been lodged by wife of the deceased, namely, Sunita Mishra against as many as 5 named accused on 19.02.2022 at about 13:48 hrs, which was registered as Case Crime No.75 of 2022, under Section 306 IPC, P.S. Naini, District-Prayagraj stating therein that the opposite party no.2-Sunita Mishra w/o Sundar Mishra is resident of House No.115, Jawahar Nagar, Naini, Prayagraj. The husband of opposite party no.2 was working in Merchant Navy, however, when he came to know about the illness of his father, he came back to reside with his father in the year 2019 and started doing contract work in Nagar Nigam on license, which was in favour of his father. The informant/opposite party no.2 has five year old daughter, therefore, father of the deceased only provided expenses for their livelihood. The informant's Jeth, namely, Dinesh Mishra and Jethani, namely, Rani Devi as well as the other Jeth, namely, Manohar Mishra and mother-in-law of the informant, namely, Kusum Devi used to harass the informant for not having son and passed remarks as to what she will do with the money when she does not have any son. When the informant requested for money for education of her child, the aforesaid persons stated as to what was the purpose of educating her daughter. As the deceased really loved his daughter as well as his wife (the informant), therefore, he had sent his wife and daughter to Ahmedabad for purpose of educating his child. The informant and her daughter had gone to Ahmedabad for the aforesaid purpose on 26.12.2021, after which she was informed through telephone by her husband that his family members were exerting pressure upon him to perform second marriage and in case, he does not agree to do the same, they would disown him from the entire property. She was also informed by her husband that her Jeth and Jethani were persuading her father-in-law to disown her husband and execute a will in their favour. Taking advantage of illness of father-in-law of the informant, who was suffering from cancer since last one year and was confined to bed, the brothers of the deceased persuaded the informant's father-in-law and influenced him to give the entire property to them. She has also alleged that she was informed by her husband (now deceased) that on 05.01.2022 taking advantage of illness of her father-in-law, the entire property was taken by the brothers of the deceased. Coming to know about the same, her husband expressed that he does not want to live any more. On the same day, 05.01.2022 at about 10:30 p.m., the informant received the Whats-app messages from 9415613440 on her mobile no.9723224428, which was a suicide note of her husband. Being shocked by the same, she tried to contact the family members but they did not pickup the phone. Being tensed, the informant left Ahmedabad in the morning at 06:00 a.m. and reached Prayagraj at the resident of the applicants on 07.01.2022 and found that on 06.01.2022, the postmortem of the body of the deceased (husband) had already been conducted and the funeral took place on 07.01.2022, but no information was given to the informant, nor anyone was ready to disclose anything about the incident. After the last rites (Terahvi) of her husband, the behaviour of the family members including the applicants was not proper, therefore, apprehending some untoward incident and due to fear, the informant went to Ahmedabad. She has further alleged that the applicants have instigated/abetted her husband to commit suicide under such circumstances where they were bothering him by passing taunts and remarks of disowning him from the property, under such circumstances he was forced to commit suicide. She was also suspecting that her husband has been murdered and the same has been given the shape of suicide, therefore, whether it is the suicide by abettement by the family members or after murdering him, colour of suicide has been given to the incident, can be well assessed after proper inquiry, therefore, she requested that the inquiry may be conducted. She further alleged that when she came back from Ahmedabad, she was not permitted to enter her house, hence, the present case has been lodged.

ii) After investigation, the charge sheet has been submitted on 27.07.2022 and the applicants have been summoned vide order dated 02.09.2022 after which bailable warrants have been issued on 07.12.2022 and finding service of summons to be sufficient, non-bailable warrants have been issued on 20.12.2022 after which on non-appearance of the applicants, Non-bailable warrants alongwith proceedings U/s 82 & 83 Cr.P.C. have been initiated against the applicants. Hence the present case has been filed.

5. Learned counsel for the applicants submits as under:-

i) the applicants are innocent and have been falsely implicated in the present frivolous case, which cannot be supported by any evidence.

ii) the present FIR has been lodged after a delay of about one month and 14 days without giving any plausible explanation for the same.

iii) the present FIR has been lodged with false and frivolous allegation with intention to get the property for which a registered will has been executed by father of the deceased in favour of mother-in-law of the informant on 09.03.2023 mentioning therein that after the death of Balram Mishra, name of Kusum Mishra be mutated in the revenue records. Subsequently, the Tehsildar passed the order dated 15.10.2022 and mutated the name of Kusum Mishra (mother-in-law of the informant) in the revenue record.

iv) disputing the suicide note, learned counsel for the applicants submits that no suicide note was recovered from the room of the deceased.

v) no offence under section 306 IPC is made out against the applicants as there is noting on record to show that there was abettment or instigation on the part of the applicants due to which the deceased committed suicide.

vi) relying upon the judgment of this Court in the case of Purushottam Chaudhary vs. Central Bureau of Investigation thru. The Superintendent decided on 27.02.2023 in Application U/s 482 No.1974 of 2023, learned counsel for the applicants submits that non bailable warrants should not be issued in a cursory manner and the order regarding proclamation U/s 82 & 83 CrPC should be issued only on the application of proclamation supported by affidavit.

vii) he further submits that issuance of non-bailable warrants should be avoided unless accused is charged with heinous offence or likely to destroy evidence. In support of his contention, he has relied upon the judgment of Apex Court in the case of Inder Mohan Goswami and another vs. State of Uttaranchal and others reported in (2007) 12 SCC 1, in which the Apex Court has held that the court should be extremely careful before issuing non-bailable warrants as issuance of the warrants involves interference with the personal liberty.

6. Learned counsel for the applicants, therefore, submitted that the present criminal proceedings initiated against the applicant is not only malicious but also amount to an abuse of the process of the court of law. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicant that the proceedings of the above mentioned criminal case are liable to be quashed by this Court.

7. On the other hand, Mr. Pankaj Srivastava, learned AGA for the State as well as Mr. Ved Prakash Shukla, learned counsel for the opposite party no.2 has opposed the submission made by the learned counsel for the applicants and submitted that delay has been well explained as the informant (wife of the deceased) came to know about the intention of the applicants after attending the last rites ceremonies of her husband and compelling circumstances, which were created by the applicants, she was left with no other option but to lodge the FIR. In the FIR itself, the explanation for delay is given. Even otherwise, it is quite natural that lady, who has lost her husband, will take time to understand the situation and act accordingly. It is admitted case of the applicants that the FIR has been lodged due to property dispute, hence it can be said that the circumstances under which the deceased committed suicide were nothing but the dispute regarding property, which was grabbed by the brothers of the deceased and the applicants had forced the deceased to leave his job. Thus left with nothing, he was placed in such circumstances under which he committed suicide.

8. Learned AGA for the State as well as learned counsel for the opposite party no.2 has further submitted that at the stage of taking cognizance by the Magistrate as per the provisions contained in Section 190(1)(b), the concerned Magistrate has to see as to whether prima facie case is being made out against the applicants. In the instant case, the concerned Magistrate has rightly taken cognizance on 02.09.2022 on the basis of the further investigation and other documents collected by the Investigating Officer including the statements of the witnesses. In support of his contention, learned counsel has relied upon the following judgments-

i. R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866;

ii. State of Haryana vs. Bhajan Lal 1992 SCC (Criminal) 426;

iii. Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (para 10) 205 SCC (Criminal) 283;

iv. Mohd. Allauddin vs. State of Bihar, AIR 2019 SC 1910;

v. Sakeer and others vs. State of U.P. passed in Criminal Misc. Application U/s 482 No. 13727 of 2006 decided on 06.03.2020.

9. Learned A.G.A. as well as learned counsel for the opposite party no.2 further submits that perusal of F.I.R. as well as statements of the witnesses, goes to show that, prima facie case for the alleged offence is made out against the applicant. Lastly, the learned A.G.A. states that this High Court may not quash the entire criminal proceedings under Section 482 Cr.P.C. at the pre-trial stage, for which he has relied upon the judgment of the Apex Court in the case of Mohd. Allauddin Khan Vs. The State of Bihar & Others reported in 2019 0 Supreme (SC) 454, wherein the Apex Court has held that the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 Cr.P.C. because whether there are contradictions or/and inconsistencies in the statements of the witnesses is an essential issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. However, in the present case the said stage is yet to come.

10. On the cumulative strength of the aforesaid submissions, learned AGA for the State as well as learned counsel for the opposite party no.2 states that this Court may not exercise its inherent power under Section 482 Cr.P.C. in the present case, and hence the present application is liable to be rejected.

11. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.

12. It would be appropriate to refer Section 306 IPC, which reads as under:-

"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."

13. In this context, it is also relevant to refer to Section 107 IPC, which reads as under:-

"107. Abetment of a thing.--A person abets the doing of a thing, who--

(First)-- Instigates any person to do that thing; or

(Secondly)--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis­close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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."

14. Section 107 IPC, when read carefully, requires that a person who is charged for abetment of a thing must have committed act of abetment directly to the deceased. It is useful to refer the suicide note of the deceased, which has been sent in the mobile of informant from the mobile number of the father of the deceased, which is enumerated herein-below:-

"मै सुन्दर मिश्रा s/o बलराम प्रसाद मिश्रा अपनी जिन्दगी से तन्ग अपने परिवार वालो से मेरे आत्महत्या मे जिमेदार मेरे घर वाले है मैने अपनी जिन्दगी इनके नाम कर दी और मुझे इन्ह लोगो ने धोखा दिया इसके जिमेदार घर के सभी लोग है मेरी पत्नी और बेटी इन लोगो की वजह से अलग है अतः मेरी कानून से प्रार्थना है कि मेरा ईसाफ किया जाय और इन लोगो को इनकी कर्मो की सजा दी जाये क्योकि इन लोगो ने मेरी जिन्दगी को तबाह कर दिया और जाब कर रहा था वो इन लोगो ने झुड़वा दिया और अपने फायदे के लिये यूज कर लिया अतः आप लोगो से निवेदन है कि मेरे साथ इन्साफ हो

मेरे पत्नी और बेटी का न्याय हो वाकि सारी साक्ष्य और रिकाडिगं मेरी पत्नी देगी

आपका

सुन्दर मिश्रा"

15. Perusal of the aforesaid suicide note as well as the evidence availble on record, this Court finds substance in the contention raised by the learned counsel for the opposite party no.2 as well as learned A.G.A. that prima facie case for the alleged offence is made out against the applicants. It is a clear case wherein the applicants by their acts and by their continuous course of conduct had created a situation which led to the deceased perceiving no other option except to commit suicide. Thus, the offence falls within the four corners of Section 306 IPC. The applicants had played an active role in forcing the deceased to leave his job and he worked on behalf of the license of his father, but only minimal expenses for maintaining his wife and child were given to him and eventually, the property was also grabbed from him, therefore, placed under these circumstances by the applicant, the deceased had no other option but to commit suicide.

16. In the present case, the applicants had by their 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 an instigation in the case can be inferred.

17. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. From the details of suicide note, which was sent on the mobile phone of the informant by her husband through mobile phone of her father-in-law, prove the compelling circumstances and continued act of annoying the deceased, which can be inferred as instigation/abettment to commit suicide.

18. In the judgment of Apex Court in the case of Ude Singh vs. State of Haryana reported in (2019) 17 SCC 301, it has been held that if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC.

19. As regards the submission of learned counsel for the applicants that non-bailable warrants have been issued in a cursory manner, learned AGA as well as counsel for the opposite party no.2 has submitted that initially, an FIR was lodged on 19.02.2022 and the applicants were released on anticipatory bail by the court below itself vide order 23.06.2022, which was till submission of charge sheet. On 27.07.2022, the charge sheet was submitted and cognizance was taken on 02.09.2022 and, thereafter, two dates, i.e. 04.10.2022 and 04.11.2022 were fixed for appearance of the accused persons. Thereafter, on 07.12.2022, bailable warrants have been issued against the applicants fixing date on 20.12.2022 for appearance. On 20.12.2022 also, when the applicants did not appear before the court concerned, non-bailable warrants have been issued against them noting that service of summons were sufficient upon the accused persons. Subsequently, on 18.01.2023, non-bailable warrants as well as the proceedings under Section 82&83 Cr.P.C. have also been initiated. After coming to know about the charge sheet, the applicants have filed an anticipatory bail application on 22.11.2022 before the concerned court, therefore, they were well aware of the cognizance order as well as the orders vide which date was fixed for 07.12.2022 for appearance of the accused. The aforesaid anticipatory bail application was dismissed on 06.02.2023 and, thereafter, on 13.02.2023, the anticipatory bail application was filed before this Court, which is still pending.

20. It is on 20.12.2022, non-bailable warrants have been issued after service of summons upon the accused applicants, therefore, the bailable warrants as well as non-bailable warrants have been issued following the guidelines in the case of Inder Mohan Goswami (supra) wherein the Apex Court has been held that the court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

21. In the present case, inspite of having knowledge of the cognizance order on 22.11.2022, the anticipatory bail application was moved before the court below and when the applicants did not appear, bailable warrants were issued on 07.12.2022 and noting that service upon the applicants were sufficient, non-bailable warrants were issued and subsequently, seeing that the applicants are avoiding appearance before the court, the proceedings U/s 82&83 CrPC were initiated by the court concerned. Therefore, it appears that the accused applicants were watching the court proceedings from outside and were avoiding their appearance so that the trial may not proceed further. There is no report of moving any application for initiation of proceedings U/s 82&83 Cr.P.C.

22. From perusal of the instructions passed on to the Court by learned AGA, it is clear that in collusion with the police officials, evidence regarding suicide note was tempered and misplaced, therefore, on the application moved by the informant/complainant before the senior officials, proper action has been taken against the erring officials, who in collusion with the applicants have tried to tempered the evidence by misplacing the suicide note, which was found in the pocket of the deceased, when the concerned police officials has reached at the place of occurrence.

23. This Court comes on the issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence(s) alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any law or Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is clear from the law laid down by the Apex Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.

24. In the case of State of Haryana Vs. Bhajan Lal reported in 1992 AIR 604, the Apex Court in paragraph 102 has enumerated 7 categories of the cases where power under Section 482 Cr.P.C. can be exercised by this Court, which are quoted below:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under 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."

25. The principles laid down by the Apex Court in the aforesaid case, have consistently been followed in the recent judgement of three-Judge Bench of the Apex Court in the case of Neeharika Infrastructure (P) Ltd. vs. State of Maharashtra reported in (2021) SCC OnLine 315 wherein it has been held that there is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

26. In recent relevant judgement of the Apex Court in the case of Shafiya Khan @ Shakuntala Prajapati vs. State of U.P., reported in (2022) 4 SCC 549, it was observed as under;-

"16. It is no doubt true that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies."

27. In view of the aforesaid, this Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. The prayer for quashing the entire proceedings is refused as I do not see any abuse of the Court's process either.

28. In such a situation where the applicants have instigated and created such circumstances that the deceased was left with no other option but to commit suicide and perusal of the averments made in the FIR as well as the statement of the witnesses recorded by the I.O. and the conduct of the applicants in a heinous offence where a person had lost his life and a special case where evidence is being tempered for which action has already been taken against the erring official, this Court is of the opinion that the relief as prayed by the applicants cannot be granted.

29. This Court, however, may clarify that whatever is said in this judgment is purely tentative and limited to the purpose of judging the worth of the prayer to quash proceedings as well as impugned orders. It is and ought not be regarded by the Trial Court as any kind of a comment or evaluation about evidence, which is yet to surface during trial. The truth of the prosecution case has to be established beyond doubt at the trial in accordance with law. However, this Court is of opinion that this is not a case, where the prosecution ought to be scuttled at the threshold in the exercise of powers under Section 482 of the Code.

30. With the aforesaid observations, the present application under Section 482 Cr.P.C. is, accordingly, dismissed.

(Manju Rani Chauhan, J.)

Order Date :- 20.03.2023

Jitendra/-