Himachal Pradesh High Court
Vikram Singh vs State Of U.P. And on 5 August, 2022
Bench: Sandeep Sharma
1
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 5th DAY OF AUGUST, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 Cr.P.C No.591 OF 2021
Between:
1. VIKRAM SINGH S/O SOM NATH, R/O
FLAT NO.101-B, GH-86, SECTOR 20,
PANCHKULA(HARYANA) AT PRESENT
POSTED AS DGM-HUMAN
RESOURCES & ADMINISTRATIVE AT
JSW HYDRO ENERGY LIMITED
(BASPA-II & KARCHAM WANGTOO
HYDRO
PROJECT) DISTRICT
KINNAUR , H.P. AGED 51 YEARS.
2. YOGESH MOHTA S/O BHAGWATI
PRASAD MOHTA, R/O B/503, EXOTICA
ELEGANCE, 9A, MALL ROAD, AHINSA
KHAND-II, INDIRAPURAM, GAZIABAD
(UP) AT PRESENT POSTED AGM-
HUMAN RESOURCES &
ADMINISTRATIVE AT JSW HYDRO
ENERGY LIMITED (BASPA-II &
KARCHAM WANGTOO HYDRO
PROJECT) DISTRICT KINNAUR, H.P.
AGED 50 YEARS.
....PETITIONERS
(BY MR. AJAY KOCHHAR, ADVOCATE WITH
MR. VIVEK SHARMA AND MR. VARUN CHAUHAN and MS. AVNI
KOCHHAR, ADVOCATES.)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(MR. SUDHIR BHATNAGAR AND MR.
NARENDER GULERIA, ADDITIONAL
ADVOCATE GENERALS WITH MR.
SUNNY DHATWALIA, ASSISTANT
ADVOCATE GENERAL).
::: Downloaded on - 09/08/2022 20:01:39 :::CIS
2
Whether approved for reporting? Yes.
This petition coming on for order this day, the Court passed the following:
.
O R D E R
By way of instant petition filed under Section 482 of the Code of
Criminal Procedure, prayer has been made on behalf of the petitioners, who
are posted as DGM and AGM, respectively at JSW Hydro Energy Limited
((Baspa-II & Karcham Wangtoo Hydro Project) District Kinnaur, H.P., for
consequent
proceedings
quashing of FIR No.62 of 2020, dated 27.07.2020 registered at police Station
Bhabanagar, District Kinnaur, H.P., under Section 306 and 34 of IPC as well as
i.e. case No.25 of 2021 (CNR No. HPK
1050022322021), pending in the Court of learned Chief Judicial Magistrate,
Kinnaur, District Kinnaur, H.P.
2. Precisely, the facts of the case, which led to lodging of the FIR
sought to be quashed in the instant proceedings are that on 27.07.2020, police
after having received information that one of the worker in JSW complex has
committed suicide, reached the spot and recorded the statement of
complainant Sh. Sukhi Ram under Section 154 Cr.P.C, wherein he alleged that
since the year 2008 he is posted as Laboratory Assistant at JSW Power House
Wangtoo. On 27.07.2020, at 1:00 PM, he alongwith other employees went to
JSW Field Hostel No.6 for having his meal, but since on that day there was lot
of noise, he enquired from the fellow employee, who disclosed that carpenter
Jai Prakash Vishwakarma has committed suicide by hanging himself in his
quarter i.e. room No.24. He alleged when he reached room
No.24, he found that Jai Prakash Vishwakarma hanging with the hook of the
ceiling fan. He stated that thereafter police visited the room of the deceased
.
and recovered one suicide note lying on the bed, wherein deceased had written
to President Sh. Jiwan Negi that he did not want to take Voluntary Retirement
Scheme (for short 'VRS'), but he has been harassed by Sh. Vikram Singh and
Yogesh Mohta. In suicide note, deceased further alleged that he is committing
suicide after being harassed mentally by Vikram Singh and Yogesh Mohta.
Deceased also written details in the English notebook with regard to loans
taken by him. He requested Jiwan Kumar to return the loan with his son. On the
basis of aforesaid statement and suicide note recovered from the room, police
lodged the FIR against the accused, named in the FIR. After completion of the
investigation, police has already presented the challan in competent court of
law, but before same could be taken to its logic end, petitioners have
approached this Court in the instant proceedings for quashing of FIR as well as
consequent proceedings pending in the competent court of law on the ground
that at no point of time deceased was compelled by the accused, named in the
FIR, to take 'VRS', rather he himself in terms of the scheme formulated by
JSW Company opted for 'VRS', but before same could be finalized, he
committed suicide. It has been further claimed by the petitioners that otherwise
also, they are not the competent authority to take decision on the request made
by the deceased for 'VRS' in terms of policy formulated by the Government,
rather such decision was to be taken by the Head of plant, who has been not
arrayed as an accused in the instant case. In nutshell, it has been claimed on
behalf of the petitioners that no case muchless under Section 306 of IPC, is
made out against them and they have been falsely implicated.
.
3. Pursuant to the notice issued in the instant proceedings,
respondent-State has filed reply, wherein facts, as narrated hereinabove, have
been not disputed. Respondent in reply has claimed that since deceased was
compelled to take 'VRS' and he had liability to pay loan, he being under
pressure committed suicide. It has been further stated in the reply that there is
ample evidence collected on record suggestive of the fact that deceased was
being constantly harassed by the accused, named in the FIR ,and they
compelled him` to take voluntarily retirement and as such, it cannot be said that
they have been falsely implicated.
4. I have heard the learned counsel for the parties and perused the
record.
5. Before ascertaining the genuineness and correctness of the
submissions and counter submissions having been made by the learned
counsel for the parties vis-à-vis prayer made in the instant petition, this Court
deems it necessary to discuss/elaborate the scope and competence of this
Court to quash the criminal proceedings while exercising power under Section
482 of Cr.PC.
6. A three-Judge Bench of the Hon'ble Apex Court in case titled
State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held
that High Court while exercising power under Section 482 Cr.PC is entitled to
quash the proceedings, 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.
.
7. Subsequently, in case titled State of Haryana and others vs.
Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court
while elaborately discussing the scope and competence of High Court to quash
criminal proceedings under Section 482 Cr.PC laid down certain principles
governing the jurisdiction of High Court to exercise its power. After passing of
aforesaid judgment, issue with regard to exercise of power under Section 482
Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing
Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017)
titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been
held that saving of the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose i.e. court proceedings
ought not to be permitted to degenerate into a weapon of harassment or
persecution.
8. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of
Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv
Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High
Court has inherent powers under Section 482 Cr.PC., to quash the proceedings
against an accused, at the stage of issuing process, or at the stage of
committal, or even at the stage of framing of charge, but such power must
always be used with caution, care and circumspection. In the aforesaid
judgment, the Hon'ble Apex Court concluded that while exercising its inherent
jurisdiction under Section 482 of the Cr.PC, Court exercising such power must
be fully satisfied that the material produced by the accused is such, that would
lead to the conclusion, that his/their defence is based on sound, reasonable,
.
and indubitable facts and the material adduced on record itself overrule the
veracity of the allegations contained in the accusations levelled by the
prosecution/complainant. Besides above, the Hon'ble Apex Court further held
that material relied upon by the accused should be such, as would persuade a
reasonable person to dismiss and condemn the actual basis of the accusations
as false. In such a situation, the judicial conscience of the High Court would
persuade it to exercise its power under Section 482 of the Cr.P.C. to quash
such criminal proceedings, for that would prevent abuse of process of the
court, and secure the ends of justice. In the aforesaid judgment titled as
Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex
Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal
proceedings, initiated against an accused by a High Court
under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as "the Cr.P.C.") has been dealt with by
this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor
wherein this Court inter alia held as under: (2013) 3 SCC 330,
paras 29-30)
29. The issue being examined in the instant case is
the jurisdiction of the High Court under Section 482
of the Cr.P.C., if it chooses to quash the initiation of
the prosecution against an accused, at the stage of
issuing process, or at the stage of committal, or
even at the stage of framing of charges. These are
all stages before the commencement of the actual
trial. The same parameters would naturally be
available for later stages as well. The power vested
in the High Court under Section 482 of the Cr.P.C.,
at the stages referred to hereinabove, would have
far reaching consequences, inasmuch as, it would
negate the prosecution's/complainant's case without
allowing the prosecution/complainant to lead
evidence. Such a determination must always be
rendered with caution, care and circumspection. To
invoke its inherent jurisdiction under Section 482 of
the Cr.P.C. the High Court has to be fully satisfied,
that the material produced by the accused is such,
that would lead to the conclusion, that his/their
.
defence is based on sound, reasonable, and
indubitable facts; the material produced is such, as
would rule out and displace the assertions contained
in the charges levelled against the accused; and the
material produced is such, as would clearly reject
and overrule the veracity of the allegations
contained in the accusations levelled by the
prosecution/complainant. It should be sufficient to
rule out, reject and discard the accusations levelled
by the prosecution/complainant, without the
necessity of recording any evidence. For this the
material relied upon by the defence should not have
been refuted, or alternatively, cannot be justifiably
refuted, being material of sterling and impeccable
quality. The material relied upon by the accused
should be such, as would persuade a reasonable
person to dismiss and condemn the actual basis of
the accusations as false. In such a situation, the
judicial conscience of the High Court would
persuade it to exercise its power under Section 482
of the Cr.P.C. to quash such criminal proceedings,
for that would prevent abuse of process of the court,
and secure the ends of justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps
to determine the veracity of a prayer for quashing,
raised by an accused by invoking the power vested
in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material
relied upon by the accused is sound,
reasonable, and indubitable, i.e., the
material is of sterling and impeccable
quality?
30.2 Step two, whether the material relied
upon by the accused, would rule out the
assertions contained in the charges
levelled against the accused, i.e., the
material is sufficient to reject and
overrule the factual assertions contained
in the complaint, i.e., the material is such,
as would persuade a reasonable person
to dismiss and condemn the factual basis
of the accusations as false.
30.3 Step three, whether the material
relied upon by the accused, has not been
refuted by the prosecution/complainant;
and/or the material is such, that it cannot
be justifiably refuted by the
prosecution/complainant?
30.4 Step four, whether proceeding with
.
the trial would result in an abuse of
process of the court, and would not serve
the ends of justice?
30.5 If the answer to all the steps is in the
affirmative, judicial conscience of the
High Court should persuade it to quash
such criminal - proceedings, in exercise
of power vested in it under Section 482 of
the Cr.P.C. Such exercise of power,
besides doing justice to the accused,
would save precious court time, which
would otherwise be wasted in holding
such a trial (as well as, proceedings
arising therefrom) specially when, it is
clear that the same would not conclude in
the conviction of the accused."
9. It is quite apparent from the bare perusal of aforesaid judgments
passed by the Hon'ble Apex Court from time to time that 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/her due to private and personal grudge,
High Court while exercising power under Section 482 Cr.PC can proceed to
quash the proceedings.
10. Sh. Narender Guleria, learned Additional Advocate General,
contended that since investigating agency after having completed investigation
has already filed challan under Section 173 Cr.PC., in the competent court of
law, prayer made on behalf of the petitioners for quashing FIR cannot be
accepted at this stage. However, this Court is not inclined to accept the
aforesaid submission made by the learned Additional Advocate General for the
reason that High Court while exercising jurisdiction under Section 482 Cr.PC
can even proceed to quash charge, if it is satisfied that evidentiary material
adduced on record would not reasonably connect the accused with the crime
.
and if trial in such situations is allowed to continue, person arraigned as an
accused would be unnecessarily put to ordeals of protracted trial on the basis
of flippant and vague evidence.
11. Recently, the Hon'ble Apex Court in case tilted Anand Kumar
Mohatta and Anr. v. State (Government of NCT of Delhi) Departmetn of
Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by
FIR stands aggravated if the FIR has taken the form of a charge sheet after
investigation and as such, the abuse of law or miscarriage of justice can be
rectified by the court while exercising power under Section 482 Cr.PC. The
relevant paras of the judgment are as under:
16. Even otherwise it must be remembered that the
provision invoked by the accused before the High Court
is Section 482 Cr. P.C and that this Court is hearing an
appeal from an order under Section 482 of Cr.P.C. Section
482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.-
Nothing in this Code shall be deemed to limit or
affect the inherent powers 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."
17. There is nothing in the words of this Section which
restricts the exercise of the power of the Court to prevent
the abuse of process of court or miscarriage of justice only
to the stage of the FIR. It is settled principle of law that the
High court can exercise jurisdiction under Section 482 of
Cr.P.C even when the discharge application is pending with
the trial court ( G. Sagar Suri and Anr. V. State of U.P. and
Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State
of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para 20).
Indeed, it would be a travesty to hold that proceedings
initiated against a person can be interfered with at the stage
of FIR but not if it has advanced, and the allegations have
materialized into a charge sheet. On the contrary it could be
said that the abuse of process caused by FIR stands
aggravated if the FIR has taken the form of a charge sheet
after investigation. The power is undoubtedly conferred to
.
prevent abuse of process of power of any court."
12. Recently, the Hon'ble Apex Court in case titled Pramod
Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608,
has elaborated the scope of exercise of power under Section 482 Cr.PC, the
relevant para whereof reads as under:-
"7. Section 482 is an overriding section which saves the
inherent powers of the court to advance the cause of
justice. Under Section 482 the inherent jurisdiction of the
court can be exercised (i) to give effect to an order under
the CrPC; (ii) to prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends of justice. The
powers of the court under Section 482 are wide and the
court is vested with a significant amount of discretion to
decide whether or not to exercise them. The court should
be guarded in the use of its extraordinary jurisdiction to
quash an FIR or criminal proceeding as it denies the
prosecution the opportunity to establish its case through
investigation and evidence. These principles have been
consistently followed and re-iterated by this Court. In Inder
Mohan Goswami v State of Uttaranchal5, this Court
observed.
"23. This Court in a number of cases has laid down
the scope and ambit of courts' powers under Section
482 CrPC. Every High Court has inherent powers to
act ex debito justitiae to do real and substantial
justice, for the administration of which alone it exists,
or to prevent abuse of the process of the court.
Inherent power under Section 482 CrPC can be
exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court,
and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though
wide have to be exercised sparingly, carefully and
with great caution and only when exercise is justified
by the tests specifically laid down in this section
itself. Authority of the court exists for the
advancement of justice. If any abuse of the process
leading to injustice is brought to the notice of the
court, then the court would be justified in preventing
injustice by invoking inherent powers in absence of
.
specific provisions in the statute."
8. Given the varied nature of cases that come before the
High Courts, any strict test as to when the court's
extraordinary powers can be exercised is likely to tie the
court's hands in the face of future injustices. This Court in
State of Haryana v Bhajan Lal6 conducted a detailed study
of the situations where the court may exercise its
extraordinary jurisdiction and laid down a list of illustrative
examples of where quashing may be appropriate. It is not
necessary to discuss all the examples, but a few bear
relevance to the present case. The court in Bhajan Lal
noted that quashing may be appropriate where, (2007) 12
SCC 1 1992 Supp (1) SCC 335
r "102. (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).
..........
(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."
In deciding whether to exercise its jurisdiction under Section
482, the Court does not adjudicate upon the veracity of the
facts alleged or enter into an appreciation of competing
evidence presented. The limited question is whether on the
face of the FIR, the allegations constitute a cognizable
offence. As this Court noted in Dhruvaram Murlidhar Sonar v
State of Maharashtra, 2018 SCCOnLine SC3100
("Dhruvaram Sonar") :
"13. It is clear that for quashing proceedings,
meticulous analysis of factum of taking cognizance
of an offence by the Magistrate is not called for.
Appreciation of evidence is also not permissible in
exercise of inherent powers. If the allegations set
.
out in the complaint do not constitute the offence of
which cognizance has been taken, it is open to the
High Court to quash the same in exercise of its
inherent powers."
13. In the light of aforesaid law laid down by the Hon'ble Apex Court,
now this Court would make an endeavour to examine and consider the prayer
made in the instant petition vis-à-vis factual matrix of the case. Close scrutiny
of the material available on record reveals that FIR sought to be quashed came
to be instituted on the basis of the statement made by complainant Sh. Sukhi
Ram, who was also working in JSW Power House. It is none of the case that
prior to committing suicide, deceased ever complained him of mental
harassment caused by the accused, named in the FIR, on account of voluntary
retirement, rather complainant himself stated in his statement recorded under
Section 154 Cr.P.C., on the basis of which, formal FIR came to be lodged that
he after having heard noise inquired and found that deceased Jai Prakash
Vishwakarma has committed suicide. He alleged that he went to the room of
the deceased and found that he had committed suicide by hanging himself with
the hook of the ceiling fan. As per complainant one suicide note duly signed by
deceased was found lying on the bed, wherein deceased had alleged that he is
committed suicide on account of harassment meted to him at the hands of the
accused, named in the FIR. In the suicide note, deceased also alleged that
though he did not want to take 'VRS', but he was compelled by Vikram Singh
and Yogesh Mohta. On the second page of suicide note addressed to Sh. Vijay
Kumar deceased has furnished information with regard to loan taken by him.
He also made request to Sh. Vijay Kumar to repay the loan alongwith his son.
.
14. Mr. Ajay Kochhar, learned counsel representing the petitioners
while inviting attention of this Court to the policy formulated by JSW with regard
to voluntary retirement (Annexure P-2) contended that decision, if any, with
regard to voluntary retirement was to be taken by an employee not by the
company and as such, it cannot be said that deceased was ever compelled by
the officials of the company to take 'VRS'. He further submitted that though
decision with regard to prayer made on behalf of an employee for 'VRS' was to
be taken by the Head of the plant, but there are ample documents available on
record suggestive of the fact that fellow employees, who had earlier applied for
'VRS', subsequently withdrawn their 'VRS' and permission was granted by the
company (Annexure P-3 to P-5). Lastly, learned counsel representing the
petitioners submitted that accused named in the FIR, are also the employees
of JSW Company and difference between them and deceased is/ was that
accused named in the FIR are/were holding managerial position, whereas
deceased was carpenter. However, ultimate decision with regard to formulation
of Voluntary Retirement Scheme and thereafter acceptance of proposal, if any,
made by an employee was to be taken by the Head of the plant and as such,
no role can be said to have been played by the accused named in the FIR in
accepting the prayer made on behalf of the deceased for taking voluntary
retirement, which was actually accepted by the Head of the Plant. Mr. Kochhar,
while inviting attention of this Court to Section 306 IPC, contended that when
there is no evidence of abetment/instigation, if any, on the part of the accused
named in the FIR, which compelled deceased to commit suicide, no case
muchless under Section 306 of IPC can be said to be made out against the
.
petitioners and they are liable to be discharged. While inviting attention of this
Court to the material placed on record with the final challan, learned counsel for
the petitioners argued that case filed under Section 306 of IPC in all
probabilities is likely to fail, but in case proceedings are not quashed at this
stage, great prejudice would be caused to the petitioners, who would be
unnecessarily compelled to go through ordeal of the protected trial, which is
likely to culminate into acquittal.
15. While refuting aforesaid submissions made on behalf of learned
counsel for the petitioners, Mr. Narender Guleria, learned Additional Advocate
General, strenuously argued that all the ingredients as are required to bring the
case in the ambit of Section 306 IPC are attracted in the present case and as
such, it cannot be said that petitioners have been falsely implicated. While
referring to the suicide note left behind by the deceased, learned Additional
Advocate General argued that it is ample clear that accused, named in the FIR,
compelled the deceased to take 'VRS'. He argued that since accused named in
the FIR made deceased to sign 'VRS' document forcibly, as a consequence of
which, he was compelled to commit suicide, it can be safely presumed that
accused named in the FIR, abetted/instigated the deceased to commit suicide
and as such, they have been rightly booked under Section 306 of IPC. He
further argued that as per RFSL Report handwriting with which suicide note has
been written is of deceased.
16. Careful perusal of Voluntary Retirement Scheme (Annexure P-2)
reveals that vide communication dated 11th October, 2019, JSW Company with
.
a view to reduce the manpower circulated the policy for voluntary retirement,
but if the preamble of aforesaid scheme is read in its entirety, it clearly reveals
that ultimate decision with regard to 'VRS' was to be taken by an employee not
by the company. Employee interested in taking voluntary retirement was to
furnish his/her option. Policy, if read in its entirety, nowhere reveals that it was
compulsory for all the employees, who were earlier working with JP Industries
to take voluntary retirement. Policy further reveals that in lieu of voluntary
retirement some amount was to be paid by the company. In the case at hand,
though prosecution case is that deceased was compelled by the accused
named in the FIR to take voluntarily retirement, but as has been discussed
hereinabove, option in that regard was to be exercised by an employee. Even
for the sake of arguments, it is presumed to be correct that deceased was
compelled by accused named in the FIR to take 'VRS' even then he had an
opportunity to make the request to re-consider his decision. There is/ are ample
evidence/documents available on record that employees, who at one point of
time had applied for 'VRS' and actually taken 'VRS' requested the company to
permit them to reconsider their decision and company not only permitted such
employees to reconsider their decision, but also took them back in the job.
However, in the instant case application by deceased for voluntary retirement
was filed on 13.07.2020, which is part of the challan and date of his reliving
was 31.07.2020. Deceased sworn an affidavit on 25.07.2020 before Sub
Divisional Magistrate, Tapri, stating therein that he has voluntarily applied for
voluntary retirement. If he was being compelled by the management or by the
accused named in the FIR, he had an opportunity to state before Sub Divisional
.
Magistrate that though he does not want to take voluntary retirement but is
being compelled by the accused named in the FIR as well as their
management. Two days after his having sworn affidavit before the Sub
Divisional Magistrate, he committed suicide leaving behind suicide note, as
detailed hereinabove. It is pertinent to take note of the fact that at the time of
suicide deceased was found heavily drunk, meaning thereby he was not in his
senses and was unable to think his good or bad.
17. Since deceased took extreme step of committing suicide while in
state of heavy intoxication, it cannot be said that he was in his senses while
writing suicide note as writing of the deceased which has been considered
suicide note by investigating agency could not and ought not to be read like a
Will, especially when the deceased was not in his senses due to his inebriated
condition and also in the absence of any other evidence on record evidencing
abetment on the part of the petitioners.
18. Leaving everything aside, this Court finds from the record, as has
been observed hereinabove, that final decision, if any, with regard to
acceptance of voluntary retirement, if any, mooted by the petitioners was to be
taken by the deceased and as such, it is not understood how petitioners, who
were merely working as DGM and AGM in the plant could be held liable for
compelling deceased to take voluntary retirement, which otherwise as per
affidavit sworn by him before the Sub Divisional Magistrate was voluntarily
taken by him. Voluntary Retirement Scheme (Annexure P-2) itself suggests that
accused named in the FIR was only to process the proposal of voluntary
retirement, if any, made by the employees in terms of scheme formulated by
.
the company, but ultimate decision in that regard was to be taken by the Head
of plant. Even in the case of the deceased, decision with regard to acceptance
of voluntary retirement was to be taken by the Head of the plant, but he was not
arrayed as an accused. Even if it is presumed that accused named in the FIR
persuaded deceased to apply for 'VRS' which he never wanted to take,
petitioners cannot be held liable for their having committed offence punishable
under Section 306 of IPC, unless it is proved on record that they had mens rea
to abet/ instigate the deceased to commit suicide, which is otherwise basic
requirement to bring the case in ambit of Section 306 of IPC. Apart from above,
there is no material available on record suggestive of the fact that accused
named in the FIR had any kind of prior animosity with the deceased and in past
on any occasion they had humiliated ,admonished the deceased or in that
regard complaint, if any, was ever made by the deceased to the higher
authorities. Moreover, accused named in the FIR came in the contact of the
deceased after company was taken over by JSW and as such, it is difficult to
conclude that they forcibly wanted to throw the petitioner out of the job,
especially when there is material evidence, as has been pointed hereinabove,
that request made by some of the employees for withdrawal of their voluntarily
retirement was duly considered and they were permitted to continue in the
company.
19. Since as per prosecution case there was a liability on the
deceased to repay the loan, as has been recorded by him in the suicide note, it
can be inferred that he was under some sort of pressure to repay the loan,
which compelled him to commit the suicide.
.
20. To prove allegation, if any, under Section 306 IPC, it is incumbent
upon the prosecution to prove abetment or instigation, if any, at the hands of
accused named in the FIR, which is totally missing in the case at hand. At this
stage, it would be apt to take note of provision contained under Section 306 of
IPC, which reads as under:-
"Section 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."
Abetment is defined under Section 107 of IPC, which reads as under:-
"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. Illustration A, a public officer, is authorized by a warrant
from a Court of Justice to apprehend Z. B, knowing that fact and also
that C is not Z, willfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation
the apprehension of C. 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."
.
21. Abetment is defined under Section 107 of 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.
r 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 facilitates the commission
there of, is said to aid the doing of that act."
22. Similarly, the dictionary meaning of the word instigate' is to bring
about or initiate, incite someone to do something. The Hon'ble Apex Court in
the case of Ramesh Kumar Vs. State of Chhattisgarh 2001 9 SCC 618 has
defined the word 'instigate' as instigation is to goad, urge forward, provoke,
incite or encourage to do an act."
23. Hon'ble Apex Court in case of S.S.Cheena Vs. Vijay Kumar
Mahajan and Anr. (2010) 12 SCC 190 has dealt with scope and ambit of
Section 107 IPC and its co-relation with Section 306 IPC. Relevant pars of the
aforesaid judgment read as under:
"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 the Supreme 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."
.
24. In the case of M. Arjunan Vs. State, Represented by its
Inspector of Police (2019) 3 SCC 315, the Hon'lbe Apex Court has held as
under:
"The essential ingredients of the offence under Section 306 I.P.C. are:
(i) the abetment; (ii) the intention of the accused to aid or instigate or
abet the deceased to commit suicide. The act of the accused, however,
insulting the deceased by using abusive language will not, by itself,
constitute the abetment of suicide. There should be evidence capable of
suggesting that the accused intended by such act to instigate the
deceased to commit suicide. Unless the ingredients of
instigation/abetment to commit suicide are satisfied, accused cannot be
convicted under Section 306 I.P.C."
25. The Hon'ble Apex Court in Ude Singh & Ors. Vs. State of
Haryana, 2019 17 SCC 301, has held that in cases of alleged abetment of
suicide, there must be a proof of direct or indirect act/s of incitement to the
commission of suicide. It could hardly be disputed that the question of cause of
a suicide, particularly in the context of an offence of abetment of suicide,
remains a vexed one, involving multifaceted and complex attributes of human
behavior and responses/reactions. In the case of accusation for abetment of
suicide, the Court is required to look for cogent and convincing proof of the
act/s of incitement to the commission of suicide. In the case of suicide, mere
allegation of harassment of the deceased by another person would not suffice
unless there be such action on the part of the accused which compels the
person to commit suicide and such an offending action ought to be proximate to
the time of occurrence. Whether a person has abetted in the commission of
suicide by another or not, could only be gathered from the facts and
circumstances of each case.
.
26. Recently, the Hon'ble Apex Court in a case (Geo Varghese v.
State of Rajasthan and Anr, 2021 (4) RCR (Criminal) 361) where student
committed suicide after being reprimanded by the teacher/administration,
categorically held that reprimanding student would not amount to instigation to
commit suicide. Relevant para of the aforesaid judgment reads as under:
27. It is a solemn duty of a teacher to instil discipline in the students.
It is not uncommon that teachers reprimand a student for not being
attentive or not being upto the mark in studies or for bunking classes
or not attending the school. The disciplinary measures adopted by a
teacher or other authorities of a school, reprimanding a student for
his indiscipline, in our considered opinion, would not tantamount to
provoking a student to commit suicide, unless there are repeated
specific allegations of harassment and insult deliberately without any
justifiable cause or reason. A simple act of reprimand of a student for
his behaviour or indiscipline by a teacher, who is under moral
obligations to inculcate the good qualities of a human being in a
student would definitely not amount to instigation or intentionally aid
to the commission of a suicide by a student.
28. 'Spare the rod and spoil the child' an old saying may have lost its
relevance in present days and Corporal punishment to the child is
not recognised by law but that does not mean that a teacher or
school authorities have to shut their eyes to any indiscipline act of a
student. It is not only a moral duty of a teacher but one of the legally
assigned duty under Section 24 (e) of the Right of Children to Free
and Compulsory Education Act, 2009 to hold regular meetings with
the parents and guardians and apprise them about the regularity in
attendance, ability to learn, progress made in learning and any other
act or relevant information about the child.
............................
32. Considering the facts that the appellant holds a post of a teacher
and any act done in discharge of his moral or legal duty without their
being any circumstances to even remotely indicate that there was any
intention on his part to abet the commission of suicide by one of his
own pupil, no mens reacan be attributed. Thus, the very element of
abetment is conspicuously missing from the allegations levelled in the
FIR. In the absence of the element of abetment missing from the
allegations, the essential ingredients of offence under section 306
IPC do not exist
.........................................
40. In the absence of any material on record even, prima-facie, in the
FIR or statement of the complainant, pointing out any such
circumstances showing any such act or intention that he intended to
bring about the suicide of his student, it would be absurd to even think
that the appellant had any intention to place the deceased in such
.
circumstances that there was no option available to him except to
commit suicide.
27. In the aforesaid judgment, the Hon'ble Apex Court has
categorically held that simple act of reprimand of a student for his behaviour or
indiscipline by a teacher, who is under moral obligations to inculcate the good
qualities of a human being in a student would definitely not amount to
instigation or intentional aid to the commission of a suicide by a student. In the
absence of the element of abetment missing from the allegations, the essential
ingredients of offence under Section 306 IPC do not exist. Apart from above,
the Hon'ble apex Court has held that victim committed suicide allegedly for
being reprimanded for repeatedly bunking classes. Reading of victim's suicide
note shows that same was penned by immature and hypersensitive mind, thus
act of accused being teacher would not ordinarily induce a circumstances to a
student to commit suicide. In the case at hand, allegedly deceased has
committed suicide after his being compelled to take voluntary retirement by the
accused name in the FIR, but since decision with regard to 'VRS' was to be
taken by the Head of the plant and accused named in the FIR were merely
holding managerial positions in the company, they cannot be said to have
abetted/ instigated deceased to commit suicide.
28. Close scrutiny of aforesaid law taken into consideration clearly
reveals that mere allegation of harassment of deceased by the accused named
in the FIR may not be sufficient to conclude guilt, if any, under Section 306 of
IPC, rather to bring the accused in ambit of Section 306 of IPC, it is required to
be established on record that deceased committed suicide after being
instigated and abetted by the accused, which is totally missing in the instant
.
case.
29. Contents of FIR and Final Report filed under Section 173 Cr.P.C,
if are taken to be correct, on its face value, do not prima facie constitute the
offence against the accused. Neither FIR nor Final Report filed under Section
173 Cr.P.C, disclose offences, if any, punishable under Section 306 IPC against
the accused named in the FIR. There is no sufficient evidence available on
record to connect the accused named in the FIR for the offences alleged to
have been committed by them.
30. Having scanned the entire material adduced on record by the
prosecution alongwith Final Report filed under Section 173 Cr.P.C, this Court
has no hesitation to conclude that evidentiary material on record, if accepted,
would not reasonably connect the petitioners with the crime and as such, no
fruitful purpose would be served, in case, accused are put to protracted trial,
which otherwise, is likely to fail on account of lack of evidence.
31. Having perused the material available on record, this Court finds
that chances of conviction of accused named in the FIR, are very remote and
bleak and as such, it may not be in the interest of justice to let accused named
in the FIR face trial, which in any eventuality is likely to fail.
32. Consequently, in view of the above, present petition is allowed
and FIR No.62 of 2020, dated 27.07.2020 registered at police Station
Bhabanagar, District Kinnaur, H.P., under Section 306 and 34 of IPC as well as
consequent proceedings i.e. case No.25 of 2021 (CNR No.HPK
1050022322021), pending in the Court of learned Chief Judicial Magistrate,
Kinnaur, District Kinnaur, H.P. are quashed and set-aside and the petitioners-
.
accused are acquitted of the charges framed against them under Section 306
and 34 IPC. Interim order, if any, is vacated.
Accordingly, petition is disposed of alongwith pending
applications, if any.
5th August, 2022 (Sandeep Sharma),
(shankar) Judge
