Research › Search › Judgment

Karnataka High Court · body

2014 DIGILAW 371 (KAR)

Gopalkrishna v. Sharad Kumar Shirali

2014-03-19

K.N.PHANEENDRA

body2014
Order K.N. Phaneendra, J. 1. Heard learned counsel for the petitioner, learned counsel for respondent No. 1 and learned Additional State Public Prosecutor for respondent No. 2 - State. Perused the records. 2. The petitioner has approached this Court seeking for quashing of the entire proceedings in P.C. No. 69/2011, which is later registered as C.C. No. 649/2013, on the file of Prl. J.M.F.C., Bhatkal. 3. A person by name Sharad Kumar Shirali, who is respondent No. 1 herein has lodged a private complaint alleging that the accused-petitioner has committed an offence punishable under Section 306 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C for brevity). It appears that the learned Magistrate after registering the complaint has referred the matter to police for investigation and report. After registering the case police have investigated the matter and submitted a final report to the Court that it is a false case. The complainant was given an opportunity to contest the 'B' Final report submitted by police. Accordingly, on 17.06.2013 respondent has filed protest petition, wherein, he has stated that the police have not properly investigated the matter, on the basis of said protest petition and on the allegations made in the original complaint, the learned Magistrate has taken cognizance and recorded the sworn statement of complainant as P.W.1, one Rajendra as P.W.2 and one Sandeep Shetty as P.W.3. Thereafter, learned Magistrate has come to the conclusion that a prima facie case is made out for the offence punishable under Section 306 of I.P.C. against the accused -petitioner. As such cognizance is taken against petitioner and summons is also issued to him under Section 204 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C. for brevity). At this juncture, present petition is filed for quashing of the entire proceedings before the learned Magistrate. Before adverting to the factual matrix of this case and find out whether there are any grounds to quash the entire proceedings, it is just and necessary to bear in mind the submissions made by learned counsel for respondent No. 1. 4. The learned counsel for respondent No. 1 strenuously contended that the averments made in complaint and the sworn statement, if it is translated into evidence, at this stage, are sufficient to show that there are prima facie materials to attract Section 306 of I.P.C. Therefore, the learned Magistrate has not committed any illegality. 4. The learned counsel for respondent No. 1 strenuously contended that the averments made in complaint and the sworn statement, if it is translated into evidence, at this stage, are sufficient to show that there are prima facie materials to attract Section 306 of I.P.C. Therefore, the learned Magistrate has not committed any illegality. Secondly, he contended that if at all the petitioner is aggrieved by the private complaint, then he has to approach the trial Court for discharge and if he fails to succeed there, then only he has to approach this Court under Section 482 of Cr.P.C. Thirdly, he contended that when the civil matters are pending before Civil Courts between the parties then that does not appear to be a bar to file complaint and when the materials placed before Court are sufficient to draw an inference, then such proceedings should not be quashed. 5. Per contra, learned counsel for petitioner strenuously contends that if the complaint averments as well as the sworn statement are translated into evidence, then there is no iota of evidence with regard to the nature of abetment by the petitioner on the deceased. The mere averments in the complaint that the accused has abetted the deceased to commit suicide and there is harassment to deceased by accused are not at all sufficient unless it is specifically stated that what type of harassment is meted out by accused to the deceased in order to drive him to commit suicide. If there are some materials then on the basis of such facts an ordinary prudent man can come to a conclusion that the overt acts of accused are sufficient to drive a person to commit suicide. In the absence of such materials, the Court cannot proceed against the accused persons. 6. Further added to that, Section 482 of Cr.P.C. gives ample and enormous power to the Court to do complete justice between the parties. Sections 239 or 244 of Cr.P.C. cannot be called as alternative remedies to Section 482 of Cr.P.C. when the initiation of complaint and proceeding with the complaint against the accused itself is bad both on facts and law, then the Court has come to the aid of petitioner in order to set right the illegality committed by respondent and as well as the trial Court. Therefore, he has requested the Court to interfere with the orders of trial Court in quashing the same. 7. Before adverting to the facts, it is just and necessary to bear in mind a landmark decision of Hon'ble Supreme Court, which is reported in - "1992 Supp (1) Supreme Court Cases 335 between State of Haryana and others v. Bhajanlal and others." 8. The Hon'ble Supreme Court though not exhaustive but has laid down certain guidelines to be followed by High Courts while exercising the powers under Section 482 of Cr.P.C. The Hon'ble Supreme Court has categorised some of the circumstances under which extraordinary power under Section 482 of Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clear cut, well defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. The Hon'ble Supreme Court has issued as many as seven guidelines, which are as follows - "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) Whether 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. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that, there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9. The Court has to see whether the allegations made and the materials placed before Court are sufficient to attract any one of the above said guidelines issued by Hon'ble Supreme Court in order to quash the continuance of any criminal proceeding. The learned counsel has also relied upon another ruling reported in - "ACRR - 1983 - 0 - 114 between Municipal Corporation of Delhi v. Ram Kishan Rohtagt." 10. The Hon'ble Supreme Court in the above judgment has reiterated the guidelines laid down in Bhajanlal's case and further ordered that, the provision under Section 482 of Cr.P.C. confers a separate and independent power of the High Court alone to pass order, where it is justified in cases where grave and substantial injustice has been done or where the process of Court has been seriously abused. It is worth to refer a latest pronouncement of Hon'ble Supreme Court in the year 2012, which is reported in - "(2012) 10 Supreme Court Cases 741 between Geeta Mehrotra and Another v. State of Uttar Pradesh and Another." 11. It is worth to refer a latest pronouncement of Hon'ble Supreme Court in the year 2012, which is reported in - "(2012) 10 Supreme Court Cases 741 between Geeta Mehrotra and Another v. State of Uttar Pradesh and Another." 11. The Hon'ble Supreme Court in the said judgement at Head Note 'C has held that - "Cognizance of a case in matrimonial dispute - Considerations for - Requirement of allegations to be specific and disclosure of active involvement of accused, emphasised - Held, where large number of family members had been included in FIR by casually mentioning their names and contents did not disclose their active involvement, cognizance of matter against them would not be justified - Under such conditions, cognizance would result in abuse of judicial process - Quashment of such proceedings would be justified." In another ruling reported in - "(2012) 9 Supreme Court Cases 460 between Amit Kapoor v. Ramesh Chander and Another." The Hon'ble Supreme Court in the said judgment at para G has held that - "G.S. 306 r/w. Ss. 107 and 108 and S. 448 - Abetment - Instigation - What amounts to - Abettor - Who is - Held, abettor is person who abets either commission of an offence or commission of an act which would be an offence - Wilful misrepresentation of wilful concealment of material fact and such person voluntarily causing or procuring or attempting to cause or procure a thing to be done is said to instigate doing of that thing - Instigation should be gathered from circumstances of case since all cases may not be of direct evidence in regard to instigation having a direct nexus to the suicide." 12. Bearing in mind the above said rulings, before adverting to complaint averments, it is just and necessary for this Court to bear in mind what is meant by abetment. Though section 306 of I.P.C. does not define what is meant by abetment, but it only says that abettor must be punished. Section 306 of I.P.C. reads as follows - "306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 13. Section 306 of I.P.C. reads as follows - "306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 13. The above said section clearly says that whoever abets the commission of suicide he shall be punished with the description of punishment shown in the said provision. Therefore, it goes without saying that the abetment should carry or attract the intention of accused to aid or instigate or abet the deceased to commit suicide. In order to understand what is meant by abetment, the Court has to fall back upon the definition for abetment as narrated in Section 107of I.P.C., which reads thus - "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." 14. The Explanation also discloses that 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. Therefore, in order to encompass the provision under Section 107 of I.P.C. there must be an instigation to the deceased to do a particular thing i.e., commission of suicide. The intentional aiding must be accompanied by a particular act or illegal omission of the accused, which has aided the deceased to commit suicide. Therefore, the act of accused intentionally aiding by any act or by means of his illegal omission can be termed as a wrongful act on the part of accused. 15. The intentional aiding must be accompanied by a particular act or illegal omission of the accused, which has aided the deceased to commit suicide. Therefore, the act of accused intentionally aiding by any act or by means of his illegal omission can be termed as a wrongful act on the part of accused. 15. In this backdrop, let me see the factual matrix of this particular case, whether it attracts any of the segment of Section 107 of I.P.C. The complaint averments later translated into sworn statement after a protest petition being filed by respondent No. 1 shows that the complainant is none other than the brother of deceased. The deceased is also none other than the maternal uncle of deceased as well as the complainant. It is also an undisputed fact that the complainant has married the daughter of accused. 16. It is the case of complainant - respondent No. 1 that the deceased Ravindra has committed suicide on 08.05.2009 by drowning himself. The post-mortem report also shows that the death was due to asphyxia as a result of drowning and the death has taken place about 24 to 36 hours prior to post-mortem examination. It is stated in the complaint that the deceased was 48 years old at the time of his death, and it was his untimely death. In fact the allegation against accused starts from paragraph 3 of the complaint. It is alleged that the complainant herein and late Ravindra are the sons of late Smt. Shantibai W/o. Narayan Shetty. A lady by name late Smt. Ratnabai Narayan Shetty -sister of Smt. Shantaibai, was a widow and she had no issues. She had some self-acquired landed properties at Shiralli, Bhatkal taluk. In fact during her life time she has executed a registered Will dated 04.06.1981 bequeathing some properties in favour of accused and some properties in favour of deceased Ravindra. It is alleged that accused with an evil desire has got created another Will dated 24.06.1996 as if executed by Smt. Rathnabai to get more share in her properties, consequently, lessening the share of deceased. It is alleged that the said Will was forged one and the forgery is committed by accused. 17. It is alleged that accused with an evil desire has got created another Will dated 24.06.1996 as if executed by Smt. Rathnabai to get more share in her properties, consequently, lessening the share of deceased. It is alleged that the said Will was forged one and the forgery is committed by accused. 17. It is the further case of complainant that on the basis of said Will after the death of Smt. Rathnabai on 18.10.1999 he has presented the said Will before Revenue Authorities and got the mutation changed into his name. The said mutation entry was in fact challenged by deceased Ravindra by way of appeal before the Deputy Commissioner, Uttara Kannada, Karwar. On 22.11.2004 the same came to be allowed and the mutation entries made in the name of accused was set aside. The accused, in fact, has preferred W.P. No. 48089/2004 (KLR), challenging the order of the Deputy Commissioner, Karwar, which also came to be dismissed. It is further alleged that the accused did not stop the legal battle there itself. He has filed P. & Sc. No. 14/2000 before Prl. Civil Judge (Sr.Dn.), Karwar on 18.10.2000. He claimed Succession Certificate to collect the debts and securities of deceased Smt. Rathnabai Narayan Shetty on the basis of the Will dated 24.06.1996. In fact, it appears that the said petition was contested by deceased Ravindra, and therefore, the same was transferred to Civil Judge, Bhatkal, and said case was pending as on the date of death of Ravindra. It is stated at paragraph 5 that Ravindra has also challenged the said Will dated 24.05.1996 before Civil Judge (Sr.Dn.), Bhatkal, by filing a suit in O.S. No. 169/2001 against the accused as well as seven others. Later the said suit was transferred to Civil Judge (Sr.Dn.), Bhatkal and re-registered as O.S. No. 45/2005. The accused has also issued a public notice in 'Karavali Munjavu', a daily published at Karwar making false claims. But, absolutely there is no allegation with regard to the nature of public notice issued. The deceased also gave a clarification dated 26.01.2001, to the said public notice. 18. It is further alleged at para 7 that the deceased Ravindra was a straight forward man and he did not tolerate injustice. He has opposed the accused in every possible legal ways. The accused thought that the deceased was a thorn in the path of accused person. 18. It is further alleged at para 7 that the deceased Ravindra was a straight forward man and he did not tolerate injustice. He has opposed the accused in every possible legal ways. The accused thought that the deceased was a thorn in the path of accused person. It was not easy and convenient for the accused to actively participate in litigations at various courts in the presence of Ravindra. Therefore, Ravindra had become an head ache to accused. He had a strong motive to put an end to Ravindra. But, here no overt act has been alleged against accused, except the inference or imagination of the complainant. 19. In para 8 also it is stated that the deceased Ravindra died leaving behind a death note, wherein, it is stated that accused is the root cause for his death. At para 10 though it is stated that the accused had inflicted great amount of troubles to the deceased and was responsible for the then position of deceased and which illegal conduct of accused has made the deceased to commit suicide. At paragraph 11 though it is stated that the accused had administered physical threats to the deceased and the accused abetted the deceased to commit suicide and there were no other worries to the deceased except the one created by accused and nothing has been stated. 20. The above said allegations in fact have been reiterated and translated into evidence in the sworn statement of respondent. If the entire complaint and sworn statement are translated into evidence and taken as unrebutted, the Court has to see whether it is sufficient to proceed against the accused. To my perception there is absolutely no allegation about any illegal act of accused or any wrongful act of accused which has led the accused to commit suicide. What has been stated in the entire complaint is that what happened after the execution of Will, by Smt. Rathnabai, in favour of accused, whatever the act done by accused i.e., to say production of the Will before revenue authorities and getting the mutation registered in his name and also contesting the appeal filed by Ravindra before the Deputy Commissioner and also filed a writ petition before this Court and thereafter filed P. & Sc. Proceedings before Civil Court and contested the suit filed by Ravindra in O.S. No. 45/2005. Proceedings before Civil Court and contested the suit filed by Ravindra in O.S. No. 45/2005. Except these legal acts, absolutely no illegal acts have been committed by accused in order to drive the deceased to commit suicide. In the absence of elucidation of such materials in the complaint, it cannot be said that the accused has committed any offence, particularly under Section 306 of I.P.C. Now falling back upon the provisions of Section 107 of I.P.C, which has already been quoted, there must be an overt act of accused which should be pleaded in the complaint and proved during the course of evidence that the accused has instigated the deceased to do something and such an act should be of such character that ordinary prudent man should believe that, such instigation is sufficient in the ordinary course to drive a person to commit suicide. The third component of said provision is intentionally aiding, what is the aid that has been done or used by accused to intentionally make the deceased to commit suicide aiding a person should be followed by some particular act of accused. Except stating that he has fought the legal battle throughout and nothing is mentioned with regard to what is the intention of accused to fight out the legal battle is also not explicit in the complaint. Fighting for legal right can at any stretch of imagination be called as intentionally aiding of the deceased to commit suicide or under this Section there must be an illegal omission in doing a thing or by any act of the accused must be illegal so as to drive a person to commit suicide. Therefore, it clearly goes to show that there must be some overt act on the part of accused. The said overt act must be sufficient in the eyes of law or in the eyes of an ordinary prudent man that, if that particular act of accused is translated into evidence that should be the sufficient cause for driving a person to commit suicide. Therefore, it goes without a saying that in every case of suicide, it cannot be said that the said commission of suicide is abetted. Therefore, it goes without a saying that in every case of suicide, it cannot be said that the said commission of suicide is abetted. If such an act of accused i.e., fighting the litigations before the different competent Forums and Courts of law is said to be instigation or abetting a crime then, the very purpose of legislating the laws providing rights and remedies to the parties will totally become frustrated. The Constitution has given us several rights, other laws legislated by State and the Centre which emanate as branches of Constitution of India have also given certain rights, the main object and intention of these Laws including the constitutional law is to provide rights to the parties in order to protect their life, liberty property and status in the Society. When such rights are given under the Constitution and other laws for the time being in force no Court can say or no law can say that such right should not be exercised by the persons, who are vested with such rights merely because it may hurt the feeling of the adversary. So, if such rights are exercised before competent Courts of law that too in accordance with law, even if it affects the feelings or hurt other person or even if it causes any inconvenience to other person, it cannot be said that it is an illegal act of the Holder of such rights. It is quite interesting to quote out of Law of Torts two important maxims, i) injuria sine damno and ii) damnum sine injuria. Injuria sine damno says infringement of legal right without causing any actual damage. The second maxim damnum sine injuria is damage without infringement of legal right that means to say without infringing the legal right of another, if any damage is caused by the lawful activity of another, then it cannot be termed as a legal damage or any damage to the injured person though he suffers seriously. If that principle is applied to this case, definitely the legal acts that has been done by the accused has caused any hurt to the feelings of the deceased and caused any inconvenience to the deceased, it cannot be said that the accused has actively and intentionally instigated or aided the deceased with a sole intention to drive the deceased to commit suicide. Therefore, under the above said facts and circumstances of the case, on plain reading of complaint and also the averments in sworn statement, this Court is of the definite opinion that no offence either under Section 306 of I.P.C. or as defined under Section 107 of I.P.C. is constituted. If no offence is constituted, then in view of the above said decision no criminal proceeding can be allowed to be continued and if it is allowed to be continued, it definitely amounts to abuse of process of law. 21. Now coming to another important question raised by the counsels i.e., the death note left by deceased. In the said death note, it is stated that- "Accused is responsible for the status and position of the deceased as on the date of his death." “XXX XXX XXX” 22. Absolutely there is no overt act alleged against the accused. In the death note what has been done by accused in order to drive the deceased to commit suicide and what is the exact status of deceased as on the particular day and why he has taken such a decision, are not at all mentioned. A mere say that accused is responsible for death without explaining the conduct of accused, overt act of accused, nature of instigation done by accused or the intentional aiding of accused to the deceased, is not a sufficient material to constitute an offence under Section 306 of I.P.C. Therefore, as rightly contended by learned counsel the police after due investigation have submitted a 'B' Final report. The trial Court ought to have accepted the said 'B' Final report and chased the case. 23. The last but not least important aspect noted by Investigation Officer while conducting investigation is that, about six months prior to the death of deceased the accused was not at all in the Country. He had been to Foreign Country to live with his son. The Investigation Officer has categorically stated that he has examined the passport of accused and on that basis he has given the above said information. This fact clearly shows that for a period of six months the accused had no opportunity to meet and talk with the deceased or to do any act which is vulnerable to the deceased so as to drive him to commit suicide. This fact clearly shows that for a period of six months the accused had no opportunity to meet and talk with the deceased or to do any act which is vulnerable to the deceased so as to drive him to commit suicide. Looking to the above said facts and circumstances and legal aspects narrated above, I am of the opinion that this is a fit case where in order to do complete justice to the parties, the proceedings before trial Court requires to be quashed, otherwise it amounts to abuse of process of law. Calling upon a person, who has not committed any mistake to face the ordeal of trial amounts to violation of his right to liberty guaranteed under the Constitution. It is also to be taken note of that the accused - petitioner is already aged about more than 70 years, he is in the evening of his life, particularly when he has not committed any offence, it should not be a burden to him to attend the Court so far as his remaining life is concerned. Therefore, considering the above facts and circumstances, I feel it just and necessary to quash the entire proceedings. Accordingly, petition is allowed. Consequently, the proceedings pending before J.M.F.C., Bhatkal, in P.C. No. 69/2011, later registered as C.C. No. 649/2013, and all further proceedings are hereby quashed.