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2013 DIGILAW 329 (RAJ)

Aroma M. Philemon v. State of Rajasthan

2013-02-07

R.S.CHAUHAN

body2013
ORDER The petitioner, Smt. Aroma M. Philemon, has prayed for quashing FIR No. 400/11, registered at Police Station Ashok Nagar, Jaipur Metropolitan (South) for offences under Section 306 IPC, and under Section 3(1)(x) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (henceforth referred to as "the SC/ST Act"). 2. Briefly stated the facts of the case are that the petitioner happens to be the Principal of Saint Soldier Public School in Jaipur. In the school, eating of gutkha and smoking by the students is strictly prohibited. However, on 29-11-2011, it was discovered that few students had eaten gutkha and had spit on the walls of the school. This fact was reported to the petitioner on 30-11-2011. It was decided that school bags of the students should be searched. In the bag of Shubham Khoda, six pouches of pan masala and gutkha were discovered. In the bag of another student, namely Mohd. Shoaib, few pouches of gutkha and a knife were discovered. The parents of both the students were called; both the students were restricted from the school. However, subsequently, the parents met the Chairman of the Managing Committee and assured them that the children would adhere to the discipline of the school. Therefore, they were permitted to come back to the school. They rejoined the school on 9-12-2011. On 9-12-2011, both the students were asked to apologize before the assembly of students and to promise that they would not break the discipline of the school. Shubham Khoda continued to attend the school till 21-12-2011. However, in the intervening night of 21-12-2011 and 22-12-2011, he committed suicide. On 24-12-2011, a FIR was registered against the petitioner for offence under Section 306 IPC and Section 3(1)(x) of the SC/ST Act. During the course of investigation, a suicide note was discovered wherein Shubham Khoda has written that the petitioner "is responsible for my death". Hence, this petition before this Court for quashing of the FIR. 3. Mr. S. S. Hora, the learned counsel for the petitioner, has vehemently raised the following contentions before this Court : firstly, that a bare perusal of the FIR does not disclose the ingredients of the offence under Section 306 IPC. Hence, this petition before this Court for quashing of the FIR. 3. Mr. S. S. Hora, the learned counsel for the petitioner, has vehemently raised the following contentions before this Court : firstly, that a bare perusal of the FIR does not disclose the ingredients of the offence under Section 306 IPC. According to the complainant-respondent, Ramphool Meena, the father of Shubham Khoda, it is alleged that the petitioner and the PTI, Vikram Singh Shekhawat, used to mentally and physically torture his son because he was a member of a Scheduled Tribe. He further alleged that they used words with his son which referred to his Scheduled Tribe status. It is due to the cruelties inflicted on him that he finally committed suicide. Secondly, before an offence under Section 306 IPC can be made out, the ingredients of abetment as defined under Section 107 IPC, have to be culled out from the allegations. An abetment is an instigation by any person for doing of the thing, or entering into a criminal conspiracy for doing a thing, or intentionally aiding by any act or illegal omission. However, in the present case, the petitioner has neither instigated, nor intentionally aided, nor entered into a criminal conspiracy for the suicide to be committed by Shubham Khoda. Merely because the child has written in the suicide note that the petitioner is responsible for his death, it cannot be concluded that she had instigated, or intentionally aided his suicide. Thirdly, as the Principal of the school, the petitioner is responsible for maintaining discipline in the school. In order to maintain the discipline, at times, the teachers or the Principal may have to speak a bit harshly. But, such a rebuke cannot be taken as an act of instigation, or intentionally aiding the commission of suicide. If a mild scolding of a child is seen as "an abetment of suicide", it would be difficult to maintain discipline in the school. Therefore, the ingredients of the offence under Section 306 IPC are conspicuously missing in the present case. Fourthly, as far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, the learned counsel has pleaded that the complainant had never lodged any written or oral complaint that his son has been discriminated, or was insulted due to his caste. After having lost his son, the complainant has fabricated the facts as an after thought. Fourthly, as far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, the learned counsel has pleaded that the complainant had never lodged any written or oral complaint that his son has been discriminated, or was insulted due to his caste. After having lost his son, the complainant has fabricated the facts as an after thought. Hence, he has tried to create an offence under Section 3(1)(x) of the SC/ST Act. Lastly, that the school has other students who also belong to the Scheduled Tribe Community, but none of them have ever complained that the petitioner was prejudiced, or had treated them harshly because of their caste status. Therefore, the ingredients of offence under Section 3(1)(x) of the SC/ST Act are also missing in the present case. Thus, the FIR deserves to be quashed. 4. On the other hand, Mr. Mahesh Gupta, the learned Counsel for the complainant-respondent No. 2, and Mr. Javed Choudhary, the learned Public Prosecutor for the State, have contended that according to the police, there is no rule in the school that a child should be called out before the assembly and should be asked to promise that he would maintain the discipline and should be asked to apologize for his misconduct. According to Mr. Gupta, the child was constantly maltreated because he belonged to Scheduled Tribe. It is due to the environment created around him that he had no option but to commit suicide –– a suicide for which he held the petitioner responsible according to the suicide note. Secondly, that according to the statement of the complainant-Ramphool Meena, Gopal Lal Meena, Gopi Devi and Anita Devi, there is sufficient evidence about the commission of offence under Section 3(1)(x) of the SC/ST Act. Lastly, that the scope of interfering with a FIR under Section 482 Cr.P.C. is extremely limited one. Therefore, this Court should not interfere with the investigation. 5. Heard the learned counsel for the parties, perused the case diary and examined the FIR. Section 306 IPC 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." Section 107 IPC reads as under :–– "107. Section 306 IPC 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." Section 107 IPC 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 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 thereof, is said to aid the doing of that act." 6. The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussed repeatedly by the Apex Court. In the case of S. S. Chheena v. Vijay Kumar Mahajan & Anr., (2010) 12 SCC 190 : 2010 AIR SCW 4938, the Supreme Court observed 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." 7. Although, the above noted case dealt with framing of the charge for offence under Section 306 IPC, but the fact remains that the passage, quoted above, clearly reveals the ingredients of Section 306 IPC. 8. Although, the above noted case dealt with framing of the charge for offence under Section 306 IPC, but the fact remains that the passage, quoted above, clearly reveals the ingredients of Section 306 IPC. 8. In the case of Ramesh Kumar v. State of Chhattisgarh ( 2001 (9) SCC 618 ) : ( AIR 2001 SC 3837 ), the Apex Court defined "instigation" to mean "to goad, urge forward, provoke, incite, or to encourage to do an act". 9. In the case of M. Mohan v. State (2011) 3 SCC 626 : ( AIR 2011 SC 1238 ), the Apex Court held that there should be some live link, or a proximate link between the act of the accused and the act of committing of suicide. If the live link is missing, it cannot be said that the accused has instigated, or intentionally aided the commission of suicide. 10. The case of Madan Mohan Singh v. State of Gujarat & Anr. ((2001) 8 SCC 628) : (2010 AIR SCW 5101) deals with a suicide committed by a driver wherein the driver had blamed his superior officer for his suicide. He had clearly written "alone Madan Mohan Singh is responsible for my death .....my life has been ruined by Madan Mohan Singh". In this background, the Apex Court had opined as under :–– "It is absurd to even think that his superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. 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 that case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature." 11. Having concluded so, the Hon'ble Supreme Court opined that the High Court had erred in not quashing the proceedings; it allowed the petition, and quashed the proceeding itself. 12. A bare perusal of the statement of the complainant Ramphool Meena clearly reveals that according to him, allegedly, his son was subjected to mental cruelty and physical assault by the petitioner, by Vikram Singh Shekhawat, PTI, Kushal Singh and Raju Gupta, the Physics teacher. 12. A bare perusal of the statement of the complainant Ramphool Meena clearly reveals that according to him, allegedly, his son was subjected to mental cruelty and physical assault by the petitioner, by Vikram Singh Shekhawat, PTI, Kushal Singh and Raju Gupta, the Physics teacher. According to him, his son was asked to apologize in the assembly. His son was referred to according to his caste status. Thus, according to him, his son was instigated to commit suicide. A similar statement has been given by Vinod Meena, the uncle of the deceased, by Gopal Lal Meena, the grandfather of the deceased, by Gopi Devi, the grandmother of the deceased and by Anita Meena, the mother of the deceased. 13. But a bare perusal of these statements clearly reveals that general allegations of being scolded and of being hit by the teachers have been made. But no details about the date of scolding, or being hit has been given. No details about how the child was hit, or about the possible injuries caused to him have been detailed. Only vague allegations have been made. Moreover, even if these allegations are taken as unrebutted facts even then there is no evidence to show that the petitioner had instigated or intentionally aided the commission of suicide. The words "haven't you died yet" (tu abhi mara nahi) mentioned in the statement of Ramphool, the complainant, cannot be taken as the words which would instigate, or intentionally aid the person to commit suicide. Such words may be unfortunate if they are uttered, but such words would not tantamount to an active act by an accused and would not tantamount to provoking a person to commit suicide. Moreover, it is the duty of the Principal to maintain discipline of the school. It is unthinkable that while trying to maintain the discipline of the school, the Principal would instigate or intentionally aid the commission of suicide by a student. Considering the fact that the petitioner holds a responsible post, and she is discharging the duties as the principal, it is very unlikely that she would have the intention to abet the commission of suicide by one of her own pupils. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR and as narrated, in the statements of the complainant and his family members. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR and as narrated, in the statements of the complainant and his family members. Since the element of abetment is starkly absent, the essential ingredients of offence under Section 306, IPC do not exist. 14. As far as the allegation with regard to Section 3(1)(x) of the SC/ST Act are concerned, the complainant and his other family members have consistently alleged that even when they had gone to meet the petitioner and other teachers, they were addressed to with regard to their caste status. They further alleged that the child was also addressed before the assembly with regard to his caste status. Section 3 (1)(x) of the SC/ST Act deals with "insulting a person publicly with regard to his caste status". Therefore, prima facie, the ingredients of offence under Section 3 (1)(x) of the SC/ST Act do exist both in the FIR and in the statement of the complainant as well as in the statements of his other family members, mentioned above. 15. In the case of State of Haryana and others v. Bhajan Lal and others (1992 Supp (1) SCC 355) : ( AIR 1993 SC 1348 ), the Apex Court has laid down the following guidelines for quashing of a FIR/criminal complaint:–– "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. 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 wrecking vengeance on the accused and with a view to spite him due to private and personal grudge." 16. Even after taking the FIR, the statements of the complainant and of his witnesses as uncontroverted facts, even then this Court is of the opinion that the ingredients of offence under Section 306, IPC are not made out. Thus, qua the offence under Section 306 IPC, the FIR No. 400/11 dated 24-12-2011 registered at Police Station Ashok Nagar, Jaipur Metropolitan (South) for offence under Section 306, IPC is, hereby, quashed. However, as the ingredients of offence under Section 3(1)(x) of the SC/ST Act are prima facie made out, the FIR and the investigation should continue for the said offence. 17. But, by way of abundant caution, it is hereby clarified that the observations, made above, with regard to Section 3(1)(x) of the SC/ST Act should neither influence the Investigating Officer, nor the trial Court in future. The aforesaid observations are merely limited to the status of the case at present. Both, the Investigating officer and the learned trial Court are expected to assess the evidence objectively and strictly in accordance with law. 18. Therefore, this petition is partly allowed, as indicated above. The stay application is also disposed of. Petition partly allowed.