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2006 DIGILAW 59 (CAL)

SUBHA NARAYAN v. STATE OF WEST BENGAL

2006-02-02

SAILENDRA PRASAD TALUKDAR

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Sailendra Prasad Talukdar ( 1 ) THE instant case arises out of an application under Section 482 of the criminal Procedure Code, 1973. ( 2 ) BY filing such application petitioner sought for quashing of proceeding being G. R. No. 723 of 2003 now pending before the learned Sub-Divisional judicial Magistrate, (since redesignated as Additional Chief Judicial Magistrate)Durgapur, Burdwan, in connection with Durgapur Police Station Case No. 187 of 2003 dated 28. 08. 2003 under Section 306 of the Indian Penal Code. ( 3 ) GRIEVANCES of the petitioner may briefly be stated as follows: - On the basis of a written complaint lodged by one Subodh Kumar Sain, Durgapur P. S. Case No. 187/03 dated 28. 08. 2003 under Section 302/34 of Indian Penal Code was started. It was alleged in the said written complaint that "the daughter of the victim girl namely Baisakhi Sain was working as a maid servant in the house of Mrs. Mukherjee of East Point Kinder Garden School Ambedkar Sarani, City centre, Durgapur-16. " She used to work in the place of Mrs. Mukherjee during the day time as a maid-servant and in the house of the daughter of said Mrs. Mukherjee, i. e. , petitioner herein, during the night. On 26. 08. 2003 at about 5. 30 a. m. de facto-complainant came to know that his daughter committed suicide by hanging in the quarter of the petitioner herein. The petitioner used to inflict torture upon the victim girl and this was intimated to the said Mrs. Mukherjee by the de facto-complainant. The de facto-complainant assumed that his daughter committed suicide being unable to bear the torture inflicted upon her. ( 4 ) THE petitioner has, thus, been falsely implicated and this was done to wreak vengeance upon her and to spite her in the eye of the society. The petitioner was arrested and was subsequently released on bail. After completion of investigation, the Investigating authority submitted charge-sheet being charge-sheet No. 247/04 dated 01. 12. 2004 under Section 306 of the Indian Penal Code before the learned Court of S. D. J. M. , Durgapur, Burdwan against the present petitioner. Learned S. D. J. M. by order dated 24. 12. 2004 took cognizance of the said alleged offence. The allegations made in the complaint, even if taken in its entirety do not reflect the essential ingredients of the offences as alleged. Learned S. D. J. M. by order dated 24. 12. 2004 took cognizance of the said alleged offence. The allegations made in the complaint, even if taken in its entirety do not reflect the essential ingredients of the offences as alleged. Continuation of such proceeding will, thus, amount to abuse of the process of court and, as such, the present application was filed with the prayer for setting aside of the order dated 24. 12. 2004 and quashing of the proceeding under reference. ( 5 ) LEARNED Counsel Mr. Bagchi appearing for the petitioner submitted that there is no material available before the learned Court of Magistrate so as to justify further proceeding of the case. ( 6 ) IT appears from the materials available-on-record that one Subodh kumar Sain submitted a complaint before the Officer-in-Charge of the Durgapur p. S. on 28. 08. 2003. In the said complaint he stated that his daughter Baisakhi was engaged with one Mrs. Mukherjee during the day and used to be sent to her daughter's place where she used to stay at night. He came to know about his daughter's mysterious death through Mrs. Mukherjee on 25. 08. 2003. He went to Police Station to see his daughter, since deceased. He was of the firm belief that his daughter was otherwise murdered and they were trying to pass on such death as a suicide. He mentioned in such complaint that his daughter used to be tortured in various ways by the daughter of Mrs. Mukherjee and this was also brought to the notice of the Mrs. Mukherjee. ( 7 ) MR. Bagchi referring to the decision in the case of Annakali Dutta and ors. v. State, reported in 1990 (II) CHN 38 submitted that mere strong suspicion may not necessarily justify proceeding under Section 306 of I. P. C. In the said case an application under Section 401 read with Section 482 of the Criminal procedure Code was filed with a prayer to quash the charges framed -against the petitioner under Sections 306/34 and 201 of the I. P. C. by the learned sessions Judge. It was observed in the said decision that "owing to occasional torture and ill-treatment someone may decide to take one's own life. In such a case, the person who meted out such a torture and ill-treatment may not be said to have abetted the commission of suicide. It was observed in the said decision that "owing to occasional torture and ill-treatment someone may decide to take one's own life. In such a case, the person who meted out such a torture and ill-treatment may not be said to have abetted the commission of suicide. " If someone actively suggests or goads another to the act by express solicitation, insinuation or encouragement, it would certainly amount to abetment of the act. ( 8 ) MR. Bagchi also referred to the decision in the case of Mr. K. Ramakrishna and Ors. v. State of Bihar and Anr. , reported in JT 2000 (Supp. 1) SC 53, in'support of his contention that the inherent powers of the High Court under section 482 of the Code of Criminal Procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any court or otherwise to secure the ends of Justice. In the said case it was observed that where there is a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. The factual backdrop of the present case is significantly different and here, by no stretch of imagination, it can be said that there is any inherent legal bar either in institution or in continuance of the instant proceeding. ( 9 ) ATTENTION of the Court was drawn to the decision in the case of Netai dutta v. State of West Bengal, reported in 2005 (2) Supreme,300 while submitting that in absence of disclosure of facts constituting a cognizable offence, there can be no ground for proceeding against a person and in such a situation, the court can very well exercise its extraordinary power under Section 482 of the criminal Procedure Court. ( 10 ) IN the case of Sanju @ Sanjay Singh Sengar v. State of Madhya pradesh, reported in 2002 (3) Supreme 650 , the Apex Court held that "even if the prosecution story that the appellant (brother in law 'sala') of deceased did tell the deceased (husband of the sister of appellant) 'to go and die' that itself does not constitute the ingredient of 'instigation' for mens rea of offence under section 306, I. P. C. In the present case it was submitted by Mr. Bagchi, as learned Counsel for the petitioner, that the facts as disclosed in the F. I. R. do not constitute any cognizable offence. There is an averment in the said F. I. R. that the de facto-complainant was having firm belief that his daughter was otherwise murdered and, thereafter, attempts were being made to explain the situation by saying that the said daughter had committed suicide by hanging. The F. I. R. also discloses that there had been torture upon his daughter in various ways by daughter of Mrs. Mukherjee and all those were brought to the notice of Mrs. Mukherjee. ( 11 ) LEARNED Counsel for the Opposite Party/state referring to the Case diary submitted that investigation revealed materials implicating the petitioner with the alleged crime. ( 12 ) IN the present case charge-sheet has been submitted against the present petitioner for the offence under Section 306 of Indian Penal Code. Section 306 of Indian Penal Code reads as follows: -"306. Abetment of suicide.- It 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 ) IT cannot denied that to constitute an offence under Section 306 of i. P. C. , it is not enough that the victim was subjected to some harassment or used to be criticized but something more than it is necessary. It is necessary to establish that the instigation was the proximate cause for commission of suicide. ( 14 ) THE materials available-on-record at best indicate that the victim used to be tortured by the petitioner for her alleged friendship with a boy. There is absolutely nothing more in the materials so as to justify proceeding with the case for the offence under Section 306 of Indian Penal Code. Mere vague allegation, that too without referring to any date or time or any particular incident, cannot constitute an offence under Section 306 of Indian Penal Code. ( 15 ) THE question now arises as to whether there is any reason for intervention in this matter right at this stage. Till now, on the basis of the materials placed before the learned Court, cognizance has been taken of the offence under Section 306 of I. P. C. Nothing more has been done so far. ( 15 ) THE question now arises as to whether there is any reason for intervention in this matter right at this stage. Till now, on the basis of the materials placed before the learned Court, cognizance has been taken of the offence under Section 306 of I. P. C. Nothing more has been done so far. But, when it is found that the materials as disclosed on investigation do not constitute an offence under Section 306 of Indian Penal Code or for that matter, any offence in law, whether there can be any justification for allowing the proceeding to continue ( 16 ) THOUGH the facts and circumstances of the present case are significantly different from those of the cases as referred to earlier, I am of the opinion that in absence of even prima facie material or even something more than mere shadow of doubt implicating the petitioner with the offence under section 306 of I. PC. , further continuation of the proceeding will amount to abuse of process of Court. I think in the best interest of Justice, in exercise of power under Section 482 of the Criminal Procedure Code, further proceeding should, be quashed. ( 17 ) ACCORDINGLY, the present application being C. R. R. No. 1819 of 2005 be allowed. Further, proceeding of the case being G. R. No. 723 of 2003 arising out of Durgapur Police Station Case No. 187 of 2003 dated 28. 03. 2003 now pending before the learned Court of Additional Chief Judicial Magistrate, durgapur, Burdwan, be quashed. The present petitioner/accused person be discharged from bail bond. Interim order, if any, is made absolute. Seized 'alamat', if any, be disposed of in accordance with law.