Rajesh Singh Rana vs State Of Chhattisgarh
2022 Latest Caselaw 1266 Chatt

                             1

      HIGH COURT OF CHHATTISGARH, BILASPUR

                      CRMP No. 388 of 2021
• Rajesh Singh Rana

                                                  ---- Petitioner

                             Versus

• State of Chhattisgarh & Another

                                             -----Respondents

___________________________________________________

Post for pronouncement of the Orders on 11/03/2022

_ Sd/-____ JUDGE

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Order reserved on : 15.12.2021

Order delivered on : 11 .03.2022 CRMP No. 388 of 2021

• Rajesh Singh Rana Aged About 37 Years Member Of Indian Administrative Service, Presently Posted As Director,women And Child Development, Secretariat, Mahanadi Bhawan, Nava Raipur, R/o D-62 City Of Dream Kachna Raipur, District Raipur Chhattisgarh

---- Petitioner

Versus

1. State Of Chhattisgarh Through The District Magistrate Narayanpur, District Narayanpur, Chhattisgarh.

2. Smt. Sarita Soni Wd/o Late R.P. Soni, R/o Mangla Chowk, Near Lafagarh Gas Agency Bilaspur, District Bilaspur, Chhattisgarh

---- Respondents

For Petitioner : Shri Shri Mandeep Kalra, Advocate assisted by Shri Dheeraj Wankhede, Shri Kanak Malik, Shri Paras Sharma, Ms. Greeshma Menon, Ms. Srishti Tiwari and Shri Ankit Singh, Advocates.

For Resp. No.1/State : Shri Amit Singh Chouhan, PL For Resp.No.2 : Shri Vijay Chhabra, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

11/03/2022

This petition is filed against the order dated 24.02.2021 passed

by the Chief Judicial Magistrate Narayanpur in Cr. Case No. 18/2020

whereby the application filed by the petitioner/accused under Section

197 Cr.P.C. has been dismissed by upholding its own order dated

06.11.2017.

2. Brief facts of the case are that the petitioner is a member of

Indian Administrative Service of Chhattisgarh Cadre, 2008 batch and

after joining, on 07.07.2011 he was transferred and posted as Chief

Executive officer, Zila Panchayat, Narayanpur. Prior to his posting at

Narayanpur, one R.P.Soni, who was the Executive Engineer, Rural

Engineering Services, Nrayanpur Division was posted there and he

committed serious illegalities while awarding contract to the

Contractors, which was noticed by the Department and he was served

with show cause notice by the Chief Engineer, Rural Engineering

Services, Officer of the Development Commissioner, Raipur. In the

said show cause notice, all the allegations levelled against Shri

R.P.Soni are related to the fraud committed by him. The petitioner

joined as Chief Executive Officer, Zila Panchayat, Narayanpur on

07.07.2011 and show cause notice vide Annexure P/2 (dated

01.03.2011) and enquiry was initiated against Shri R.P.Soni much

before the joining of the petitioner. On 06.04.2011, another show cause

notice was issued (Annexure P/3) and after this notice he was absent

from his duties without reply to the above show cause notices for a

long period and therefore on 07.06.2011, information was sent to the

Principal Secretary, Government of Chhattisgarh, Department of

Panchayat and Rural Development with regard to the unauthorized

absence of Shri Soni from duty and that there is adverse impact on the

work to be executed under the Mahatma Gandhi Rural Employment

Guarantee Scheme and the social audit. The letter (Annexure P/4)

was sent by the then Chief Executive Officer, Zila Panchayat,

Narayanpur who is the predecessor of the petitioner prior to to his

joining. After joining as CEO, Zila Panchayat Narayanpur, the petitioner

received a complaint from one of the Secretary of Dandakaranya

Forest Conservation and Research Centre, Narayanpur for

construction of a laboratory in Girls Hostel (Sabari Ashram), Chhote

Dongar run by the institute, Member of Parliament, Bastar that though

the department has shown the work to be completed however, till date

the work has not been done and the above act comes under the

offence punishable under the provisions of the Indian Penal Code and

therefore action be taken immediately against these illegalities. This

letter of complaint dated 7.12.2011 (Annexure P/5) was forwarded to

Shri R.P.Soni who was the then Executive Engineer and In charge of

this programme wherein there was allegation that as per the oral

direction of the Executive Engineer, payment of Rs. 5,000/- has been

made to one person. On 31.03.2012, another complaint (Annexure P/6)

was made by one Rajendra Prasad Jaiswal against Shri R.P.Soni with

regard to the regularities and specific allegation has been made that

payment has been withheld deliberately. In the said complaint it was

also mentioned by the complainant that Shri Soni is harassing the

complainant by doing such irregularities. On 31.05.2012, one Nalini

Pandya, Correspondent of news magazine Shikhar Varta has made a

complaint to the petitioner regarding corruption in the construction of

WBM road from Durga Bangal to Paturbeda No.123 (Annexure P/7).

3. On receiving the said complaint, being the Chief Executive

Officer of the Zila Panchayat, Narayanpur the petitioner vide order

dated 02.06.2012 has constituted three member committee consisting

of- 1) President- Shri Prakash Sarvey, the then Sub Divisional

Magistrate (2) Member-Shri Navin Shah, Exeuctive Engineer, Prime

Minister Gram Sadak Yojana and (3) Member - Shri S.D.Khare,

Accountant, Zila Panchayat, Narayanpur to enquire the quality of

construction of WBM road constructed by the Rural Engineering

Services, Division Narayanpur. On the basis of the irregularities and

illegalities which lead to corruption committed by Shri R.P. Soni, the

petitioner on 02.06.2012 recommended the Principal Secretary,

Department of Panchayat and Rural Development, Raipur vide

Annexure P/9 for suspension of Shri R. P. Soni and for taking

disciplinary action against him. Thereafter on 15.06.2012, the Principal

Secretary, Department of Panchayat and Rural Development, Raipur

has issued a show cause notice (Annexure P/10) to Shri R.P. Soni for

institution of departmental enquiry under Rule 10 of the Chhattisgarh

Civil Services (Classification, Control and Appeal) Rules 1966.

4. On 22.06.2012, the three member committee submitted a report

before the petitioner stating that on enquiry, utter negligence and

irregularities have been found against Shri R.P.Soni. Copy of the report

is Annexure P/11. On 4.07.2012, a show cause notice (Annexure P/12)

was again issued to Shri Soni by the petitioner stating therein that a

tender for construction of boundary wall on one institution was floated

and in pursuance thereof, payment was also made but there is no such

institution in existence and this was not only a serious financial illegality

but a criminal misconduct too and is a punishable offence under the

provisions of the Indian Penal Code and the provisions of the

Prevention of Corruption Act. Again on 04.07.2021, another show

cause notice (Annexure P/13) was issued to Shri R.P.Soni in respect of

the report submitted by the Committee with regard to the

embezzlement committed in the construction of boundary wall. On

16.08.2012 at about 4-5.00 p.m. fire was noticed at the residence of

Shri R.P.Soni at Banglapara, Narayanpur and when the police reached

the spot the fire spread all over, the police made efforts to enter the

house and found him lying dead with 100% burn injuries sustained by

him and a suicide note was also recovered from his pocket, the matter

was suspicious and the police registered merg (Merg No. 34/2012) at

police station Narayanpur mentioning that Shri R.P.Soni, Executive

Engineer, Rural Engineering Services committed suicide by setting

himself ablaze after pouring kerosene oil. After two years, the first

Information Report was registered and the case was investigated by

the jurisdictional police and thereafter submitted the closure report

before the Chief Judicial Magistrate Narayanpur. However, the CJM did

not accept the report and on 14.01.2016, directed for further

investigation on certain points, investigation was further carried out,

final report was prepared and submitted before the Chief Judicial

Magistrate Narayanpur (Annexure P/14). Thereafter, learned Chief

Judicial magistrate being not satisfied with the report submitted by the

police, by order dated 6.11.2017 (Annexure P/15) directed to take

cognizance of the offence under Section 190 Cr.P.C. for the offence

punishable under Section 306/34 IPC against the accused persons

including the petitioner.

5. Against the said order, petitioner preferred revision before the

revisional court which was dismissed by the Sessions Judge,

Kondagoan by order dated 23.07.2018 against which the petitioner

preferred Cr.M.P. No. 2370/2018 before the High Court under Section

482 Cr.P.C. challenging the present petition on two folds firstly, that the

learned Chief Judicial magistrate as well as the learned Sessions

Judge have clearly overloaded the provisions of Section 197 Cr.P.C

and secondly, if the entire story is taken as it is then the offence under

Section 306 IPC is not made out against the petitioner in any manner.

Vide order dated 05.08.2020 (Annexure P/16), this High Court allowed

petition and remanded back the matter for consideration to the trial

Court and ordered to decide the matter on the application under

Section 197 Cr.P.C. and applicability of the mandatory provisions of

Section 197 Cr.P.C. before taking cognizance of the aforesaid offence

under Section 190(1)(B) Cr.P.C.

6. In compliance of the High Court order, the petitioner moved

application before the CJM Narayanpur and the matter was heard

finally on 24.02.2021. Learned Chief Judicial Magistrate straightaway

overlooked the directions of the High Court and in the said order, the

Chief Judicial Magistrate, without going through the mandatory

provision of Section 197 Cr.P.C. straightaway came to the conclusion

that the petitioner's act and omission was not done in official capacity,

therefore he will not be benefited with the provision of Section 197

Cr.P.C. and dismissed the application of the petitioner and upheld its

own order dated 06.11.2017 directing the petitioner to appear before

the Sessions Judge Kondagaon on 06.03.2021. Hence, the petitioner

filed present petition under Section 482 Cr.P.C.

7. Counsel for the petitioner submits that the impugned order dated

24.02.2021 passed by the Chief Judicial Magistrate Narayanpur is

illegal, arbitrary and contrary to law as the Chief Judicial Magistrate has

failed to appreciate the order passed by this Court in Cr.M.P. No.

2370/2018 and has affirmed its own order dated 6.11.2017. The Chief

Judicial Magistrate has failed to appreciate the documents produced by

the petitioner in which he narrated that the enquiry to show cause

notice is pending prior to his joining as CEO, Zila Panchayat

Narayanpur. The trial court has overlooked the object of Section 197

Cr.P.C. The Court below has failed to consider the fact that if at all it is

presumed that the petitioner in his official capacity has asked Shri

R.P.Soni to clear any legally sanctioned amount to a contractor which if

in the eyes of Shri Soni was illegal then he would have refused for

release of such payment and reverted the file in his official capacity, or

further he would have made complaint to the other higher officials.

However he never made any such complaint to any higher official. The

statement made by Shri Soni itself is suspicious as he has hidden

actual facts for committing suicide and thus the facts mentioned in the

suicide notes are away from reality and cannot be relied upon. The

trial court has failed to consider this fact that Shri R.P. Soni was himself

found to face multiple departmental actions and it was not only Shri

Soni but the witnesses of this case also fall within the ambit of

departmental action for which enqiury would have proceeded against

Shri Soni. In such circumstances, when the petitioner being a

supervisory authority was discharging his official duty allotted to him,

he cannot be held responsible in any way for abetting Shri Soni to

commit suicide. In his suicide note, Shri Soni has mentioned three

reasons for his suicide. The prosecution agency investigated the matter

and report was submitted before the court below but none of the

reasons reads that the petitioner is liable to be prosecuted under

Section 306 IPC. The petitioner is a public servant and he is

performing his official duty therefore without obtaining sanction under

Section 197 Cr.P.C. he cannot be prosecuted. The sanction under

Section 197 Cr.P.C. is not a mere formality it is a protective umbrella

which saves the government employee form false and prejudiced

criminal action. This Court has directed the Chief Judicial Magistrate to

pass fresh order in accordance with law but the Chief Judicial

Magistrate did not follow the order of this High Court therefore the

impugned order is liable to be set aside and the criminal proceedings

are liable to be quashed against the petitioner. Reliance has been

placed by the counsel for the petitioner in the matter of P.K.Pradhan

Vs. State of Sikkim (2001) 6 SCC 704; Subramanian Swamy Vs.

Manmohan Singh (2012) SCC; State of Maharastra Vs. Budhikota

Subbarao (1193)3SCC339; Ubdra Devu abd Ithgers Vs. State of

Rajasthan & Others MANUSC/0472/2021; Ramesh Kumar Gupta

Vs. State of Chhattisgarh MANU/CG/0106/2017; S.B.Saha Vs.

M.S.Kochar 1979 AIR 1841; Devinder Singh Vs. State of Punjab

(2016) 12 SCC 87; Prakash Singh Badal Vs. State of Punjab and

Others (2007) 1 SCC 1; Amalendu Pal @ Jhantu Vs. Stte of West

Bengal (2010)1 SCC 707; Chitresh Kumar Chopra Vs. Stte (2010) 3

SCC (Cri.) 367; State of Maharastra Vs. Som Nath Thapa (1996) 4

SCC 659; State of Andrha Pradesh Vs. M.Madhusudan Rao (2008)

15 SCC 582; Madan Mohan Singh Vs. State of Gujarat and Another

MANU/SC/0611/2010; Digamber Vaishnav and Another Vs. state of

Chhattisgarh (2019) 4 SCC 522; Vakrey Joseph Vs. State of Kerala

MANU/SC0295/1993;Sujit Biswas Vs. State of Assam (2013) 12

SCC 406.

8. On the other hand, counsel for the State as well as the

respondents supported the impugned order. It is submitted that only

because of the petitioner the deceased committed suicide and this is

not under the official capacity of the petitioner to abet the common man

to commit suicide therefore this petition is liable to be dismissed.

9. Heard counsel for the parties and perused the material available

on record.

10. In Cr.M.P. No. 2370/2018 (order dated 05.08.2020) this Court in

para 18 has ordered thus:

" Reverting to the facts of the present case in the light of the principles of law flowing from the aforesaid judgments rendered by their Lordships of the Supreme Court, it is quite vivid that though the petitioner is not removable from the office save by or with the sanction of the Central Government, yet the learned Magistrate even did not deliberate on the issue as to whether sanction under Section 197 of the Cr.P.C. is required or not before taking cognizance of the offence, as it is the case of the petitioner (Rajesh Singh Rana) that being Chief Executive Officer, Zila Panchayat, Narayanpur, at the relevant point of time, he has no role in the said offence and he has unnecessarily been involved and being dragged, as such, the learned Magistrate was required to consider the applicability of the Section 197 of Cr.P.C. for the aforesaid offences against the petitioner. The learner Magistrate was required to decide whether the act which is done or omitted to be done by the petitioner/public officer requires sanction under Section 197 of the Cr.P.C., if so, the officer will be protected and leave under Section 197 of the Cr.P.C. would be necessary, however, if it is alleged that it is not in official capacity, the officer will not be protected,

but the learned Magistrate has omitted to consider the applicability of mandatory provision of Section 197 of the Cr.P.C. before taking cognizance of the aforesaid offence under Section 190(1)(b) of the Cr.P.C. The revisional Court also omitted to consider the plea that such a plea has not been raised before the learned Magistrate, rather missed the point that at the time of taking cognizance of the offence before the learned Magistrate, the petitioner was not represented and he was not noticed and after issuing summons he filed revision questioning that order. Consequently, the order passed by the learned Magistrate dated 6.11.2017 qua the petitioner and the order of the revisional court dated 23.07.2018, both are set aside and the matter is remitted to the learned Magistrate to pass fresh order in accordance with law qua the petitioner only. It is made clear that this Court has not expressed any opinion about the merits of the matter and has not expressed any opinion about other co-accused."

With this order, the petitioner has filed application under Section

197 Cr.P.C. before the Chief Judicial Magistrate, Narayanpur but by

the impugned order dated 24.02.2021 learned Chief Judicial magistrate

has dismissed the application of the petitioner with the finding that

ijUrq ;g izdj.k ekuuh; l= U;k;ky; fopkj.kh; gS blfy, vkjksi ds fcUnq ij bl U;k;ky; }kjk fopkj fd;k tkuk mfpr ugha gksxkA bl izdkj mijksDr fu"d"kZ ds i'pkr~ ;g izrhr gksus ls fd vkosnd @vkjksih ds }kjk dkfjr d`R; n.M izfdz;k lafgrk dh /kkjk 197 ds varxZr laj{k.k ;ksX; ugh gSA vr% izLrqr vkosnu i= [kkfjt fd;k tkrk gSA

Section 197 Cr.P.C. reads as under:

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is

accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

xxx xxx xxx

xxx xxx xxx"

Section 190(1)(b) Cr.P.C. empowers a magistrate to take

cognizance which states as under:

"190. Cognizance of offences by Magistrates - (1) subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the Second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

        (a) xxx       xxx          xxx

        (b) upon a police report of such facts;

        (c) xxx       xxx          xxx

11. Hon'ble Apex Court in the matter of P.K.Pradhan Vs. State of

Sikkim represented by CBI (2001) 6 SCC 704 has held that :

15. Thus, from a conspectus of the aforesaid decisions,

it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of an the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty,but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forwarded by the prosecution fails or the defence established that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised anytime after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in curse of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.

12. Similarly, in the matter of Subramaniam Swamy Vs. State of

Manmohan Singh (2012) 3 SCC 64 , it has been held by the Apex

Court that :

" 1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:

"2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.

Keeping those principles in mind, as we must, if we look at Section 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt

officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.

13. This Court has also allowed the petition (Cr.M.P. No. 2370/2018)

on the ground that the Chief Judicial Magistrate Narayanpur and the

revisional Court considered the mandatory provision of Section 197

Cr.P.C. before taking cognizance of the aforesaid offence under

Section 190(1)(B) Cr.P.C but the learned Judicial magistrate again did

not decide the application of the petitioner under the provisions of

Section 197 Cr.P.C. and passed the order impugned which is not

sustainable as per law.

14. This petition has also been filed by the petitioner on the ground

that the ofence under Section 306 IPC is not made out against him and

the charge sheet filed against the petitioner and other co-accused

persons under Section 306/34 IPC, the statements of the witnesses

stating that the petitioner and the co-accused have abated the

deceased to commit suicide and the suicide note of the deceased have

been annexed along with this petition. In the suicide note it has been

mentioned that " lh-bZ-vks- Jh jk.kk lkgc 3-50 yk[k dk voS/k Hkqxrku

xkSre tSu dks djokus gsrq ckj-ckj ncko cuk jgk Fkk] [kqn vkQhllZ Dyc

esa ,oa tkus dgka&dgka dk;Z djok;k ,oa Hkqxrku voS/k #i ls 'kkldh;

jkf'k ls djok jgk Fkk ,oa Hkqxrku u djus ij fjyho ugha d#axk ,slk dgk

tk jgk Fkk] bl dkj.k esjh ekufld fLFkfr fcxM xbZ ,oa eq>s vkRegR;k

gsrq ck/; gksuk iMkA"

15. The petitioner has filed various show cause notices (Annexure

P/2, P/3, P/4) which were issued to the deceased by the predecessor

of the petitioner. The petitioner has joined the office on 07.07.2011 and

the show cause notice was issued on 01/03/2011 (Annexure P/2)

06.04.2011 (Annexure P/3) and on 07/06/2011 (Annexure P/4). It is

clear from these notices that the department had issued summons to

the deceased/employee for his work and when the petitioner joined the

office he has also issued some show cause notices to R.P.Soni

(deceased). The show cause notice (Annexure P/10) issued by the

Chief Secretary, Chhattisgarh Government (Panchayat) Rural

Development which was related to the work of Shri R.P.Soni for the

period 30.07.2009 to 12.06.2012. It is clear from various documents

filed by the petitioner that some proceedings were initiated against the

deceased/employee for illegality and irregularity in relation to the work

and the action was taken against the deceased. The wife of the

deceased and other witnesses have stated that the petitioner/accused

abeted the deceased for committing suicide.

Section 306 IPC reads as under :

Section 306 prescribes punishment for 'abetment of suicide' while section 309 punishes 'attempt to commit suicide'. Abetment of attempt to commit suicide is outside the purview of section 306 and it is punishable only under section 309 read with section 107, I.P.C.. In certain other jurisdictions, even though attempt to commit suicide is not a penal offence yet the abettor is

made punishable. The provision there provides for the punishment of abetment of suicide as well as abetment of attempt to commit suicide.

Thus even where the punishment for attempt to commit suicide is not considered desirable, its abetment is made a penal offence. In other words assisted suicide and assisted attempt to commit suicide are made punishable for cogent reasons in the Interest of society. Such a provision is considered desirable to also prevent the danger Inherent in the absence of such a penal provision."

The 'abatement' has been defined in Section 107 of the IPC,

which reads as under:-

"Section 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 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."

16. In the matter of Madan Mohan Singh Vs. State of Gujarat and

Another MANU/SC/611/2010, the Hon'ble Apex Court has held that

"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.

11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean

that the accused intended or knew that the driver should commit suicide because of this.

12. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.

13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. 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 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 Vs. State of W.B. [2005 (2) SCC 659], this Court had quashed the proceedings

initiated against the accused.

14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work."

17. In the matter of Velladurai Vs. State represented by the

Inspector of Police MANU/SC/0644/2021 (Cr.A. No. 953 of 2021) the

order dated 14.08.2021 Hon'ble Apex Court held in para 9 and 9.11:

Now so far as the offence under Section 306 IPC is concerned, in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide. Therefore, in order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide. As observed and held by this Court in the case of Amalendu Pal (supra), mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence

under Section 306 IPC.

9.1 Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide. In the instant case, the allegation against the appellant is that there was a quarrel on the day of occurrence. There is no other material on record which indicates abetment. There is no material on record that the appellant- accused played an active role by an act of instigating the deceased to facilitate the commission of suicide. On the contrary, in the present case, even the appellant- accused also tried to commit suicide and consumed pesticide. Under the circumstances and in the facts and circumstances of the case and there is no other material on record which indicates abetment, both the High Court as well as the learned trial Court have committed an error in convicting the accused for the offence under Section 306 IPC.

18. In the instant case, it is clear from various documents and the

suicide note of the deceased that the predecessor of the petitioner and

the petition issued some show cause notices to the

deceased/employee. The petitioner constituted a committee for enquiry

against the deceased/employee. The department also initiated enquiry

against the deceased/employee which clearly shows that even before

the posting of the petitioner, his work was not satisfactory in the eye of

the superiors and he was served with several show cause notices. The

petitioner also issued show cause notice in his official capacity and as

a head of the department the contents of the suicide note and the

statement of the witnesses does not reveal any willful conduct which is

of such a nature as is likely to drive the deceased to commit suicide.

19. In the present case, the allegation made in the FIR as well the

material collected during the investigation even if they are taken at their

face value and are accepted, they do not prima facie constitute the

offence under Section 306/34 IPC against the petitioner.

20. In the light of the above principles and looking to the facts of the

case, both the grounds of the petitioner succeed firstly, that the act of

the petitioner was on official capacity therefore the prior sanction under

Section 197 Cr.P.C. is required and without prior sanction the

Magistrate cannot take cognizance against the petitioner and secondly,

the charge sheet does not have any material or is capable as per the

law laid down by the Apex Court and viewed as having material for the

offence under Section 306 IPC.

21. For the above and for the reasons stated above, the present

petition filed under Section 482 Cr.P.C. succeeds. The order dated

order dated 24.02.2021 passed by the Chief Judicial Magistrate

Narayanpur in Cr. Case No. 18/2020, FIR and criminal proceedings

related to the petitioner are hereby quashed and set aside. The

petitioner is discharged of the charges levelled against him.

Sd/-

(Rajani Dubey) Judge suguna