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2018 DIGILAW 525 (CAL)

Debabrata Saha v. State of West Bengal

2018-07-27

ASHA ARORA

body2018
JUDGMENT : ASHA ARORA, J. 1. By the instant application under section 482 of the Criminal Procedure Code petitioner has assailed the proceeding arising out of Tollygunge P.S. Case No. 105 of 2009 dated 23/5/2009 under section 306 IPC (Sessions Case No. 28(1) of 2014) pending before the learned Assistant Sessions Judge 6th Court Alipore. The order dated 11/6/2014 passed by the trial Court in the aforesaid case has also been challenged by the petitioner. 2. The facts in brief giving rise to the impugned proceeding are as follows: On 23/5/2009 Sub-Inspector Rajib Chatterjee of Tollygunge P.S. received an information from one Subhankar Banerjee that his cousin brother Sanjay Banerjee was found hanging in the common stair case of the ground floor Premises no. 117/B Shyma Prasad Mukherjee Road Kolkata – 26. On the basis of such information S.I. Rajib Chatterjee proceeded to the place of occurrence and found the deceased hanging from the stair case grill by means of a ‘gamcha’. On search a suicide note was found in the pocket of the deceased which mentioned the name of the petitioner and one Vivek Ruia. The case was registered on the basis of a written compliant by Sub-Inspector Rajib Chatterjee alleging commission of an offence punishable under section 306 IPC against Debabrata Saha who is the petitioner herein. Investigation culminated in the submission of the charge-sheet under section 306 IPC against the petitioner. 3. Subsequently the case was committed to the Court of the Learned Sessions Judge Alipore wherefrom it was transferred to the learned Assistant Sessions Judge 6th Court Alipore. By an order dated 11/6/2014 the trial Court, upon considering the available materials, framed charge under section 306 IPC against the petitioner who pleaded not guilty to the indictment and claimed to be tried. The case was accordingly posted for evidence. 4. Aggrieved, the petitioner preferred the instant application. 5. Mr. Sanyal, learned counsel appearing for the petitioner sought to impress that the trial court was not justified in framing charge against the petitioner since the ingredients of the offence under section 306 IPC are clearly wanting. Mr. The case was accordingly posted for evidence. 4. Aggrieved, the petitioner preferred the instant application. 5. Mr. Sanyal, learned counsel appearing for the petitioner sought to impress that the trial court was not justified in framing charge against the petitioner since the ingredients of the offence under section 306 IPC are clearly wanting. Mr. Sanyal submitted that the petitioner filed a suit for declaration and injunction being Title Suit No. 1439 of 2007 against Sanjay Banerjee (since deceased) claiming to be a tenant under him in respect of a room on the ground floor of premises No. 117/B Shyama Prosad Mukherjee Road which is pending before the learned Civil Judge (Junior Division) Alipore and an order of injunction was passed in his favour long before the commission of suicide by the deceased. It has been argued that the petitioner is in no way connected with the offence alleged. 6. Referring to the copy of letter of Vivek Ruia addressed to the o/c of Tollygunge P.S. at page 35, Mr. Sanyal pointed out that the deceased Sanjay Banerjee and other co- owners of premises No. 117/B Shyama Prosad Mukherjee Road entered into an agreement with the developer Vivek Ruia for development of a multistoried building in the aforesaid premises pursuant to which the deceased asked the petitioner to vacate the room in his occupation. Apprehending ouster from the aforesaid room petitioner filed a suit for declaration and injunction and secured an order of injunction in respect of the suit premises which has nothing to do with the commission of suicide by the deceased. It has emphatically been argued that the suicide note which forms the fulcrum of the case does not reflect any abetment by the petitioner. To buttress his submissions, learned counsel for the petitioner placed reliance upon the decisions of the Supreme Court in Sanju Alias Sanjay Singh Sengar Versus State of M.P. reported in 2002 Supreme Court Cases (Cri) 1141 and State of Kerala and others versus S. Unnikrishnan Nair and others reported in (2015)4 Supreme Court Cases (Cri) 61. To buttress his submissions, learned counsel for the petitioner placed reliance upon the decisions of the Supreme Court in Sanju Alias Sanjay Singh Sengar Versus State of M.P. reported in 2002 Supreme Court Cases (Cri) 1141 and State of Kerala and others versus S. Unnikrishnan Nair and others reported in (2015)4 Supreme Court Cases (Cri) 61. Reference has also been made to some decisions of this Court reported in (2007) 1 C CrLR (Cal) 714 in Bishnu Chakraborty & another Versus The State of West Bengal, (2008) 1 C CrLR (Cal) 151 in Sandip Bhattacharjee Versus The State of West Bengal, 2010(2) CHN (Cal) 560 in Anil Kumar Sarker Versus State of West Bengal and others and (2016)3 C CrLR (Cal) 311 in Sri Swapan Roy and another Versus State of West Bengal and another. 7. Mr. Roy Chowdhury, learned advocate appearing for the State countered that the statement of witnesses read with the suicide note make out a prima facie case against the petitioner. 8. Unnikrishnan’s Case(Supra) relied upon by the learned counsel for the petitioner is clearly distinguishable on facts from the present case. In the decision referred, abetment of suicide was alleged against respondents based on a suicide note of deceased officer heading CBI investigating team. It was observed in the aforesaid judgment that except saying that respondents compelled deceased to do everything in investigating team and cheated him and put him in deep trouble, the suicide note contains nothing else. It was further observed that the respondents being inferior in rank, it was surprising that such a thing could happen. It was held therein that no prima facie case of abetment was made out against the accused. 9. In the instant case in hand the suicide note coupled with the statement of witnesses under section 161 Cr.PC. disclose a prima facie case against the petitioner. Similarly, on facts Sanju’s case(Supra) also has no application to the present case. In Sanju’s case in paragraph 14 of the judgment the Supreme Court held as follows: “14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelem Sengar. He was a frustrated man. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelem Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not the handiwork of a man with a sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 CrPC before the investigation officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26-7-1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25-7-1998 and if the deceased came back to the house again on 26-7-1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7-1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of “abetment” are totally absent in the instant case for an offence under Section 306 IPC. It is in the statement of the wife that the deceased always remained in a drunken condition. It is common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25-7-1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death.” 10. Bishnu Chakraborty’s case and Sandip’s case (Supra) are not apposite for the purpose of the instant case. In Bishnu’s case it was observed that the statements recorded under section 161 CrPC do not find sufficient support of the allegations made in the petition of complaint. In Sandip’s case also it was held that there was no prima facie material under section 306 IPC to justify continuance of the proceeding against the petitioner. In Bishnu’s case it was observed that the statements recorded under section 161 CrPC do not find sufficient support of the allegations made in the petition of complaint. In Sandip’s case also it was held that there was no prima facie material under section 306 IPC to justify continuance of the proceeding against the petitioner. 11. In Anil’s case (Supra) after investigation police submitted final report for termination of the proceeding which was accepted by the Chief Judicial Magistrate. It was held by a learned Single Judge of this Court that the prayer for further investigation on the basis of a suicide note was rightly rejected by the Magistrate as there was nothing in the suicide note that alleged that the rape case against the deceased victim was initiated at the instigation of the opposite parties. Swapan Roy’s case (Supra) also finds no application to the facts of the present case. In Swapan Roy’s case investigation ended in the submission of a final report wherein prayer for discharge of the accused persons was made. No protest petition was filed. The final report was accepted. After a lapse of about two years the impugned criminal proceeding was lodged by the opposite party No. 2 alleging that the petitioners who are the matrimonial uncle and aunt of the deceased victim had abetted the commission of suicide by the victim. Investigation in the said case initially resulted in a final report. On the prayer of the opposite party No. 2, further investigation was directed in the course of which a diary was belatedly produced by the opposite No. 2 purportedly written by the victim where comments had been made as to the conduct of the petitioners which, according to the opposite party No. 2 had prompted the victim to commit suicide. A learned Single Judge of this Court observed in the said judgment that the foundation of the allegation against the petitioner is primarily based on certain entries purportedly made by the victim in his diary the authenticity of which has been seriously questioned by the petitioners. Be that as it may, even if such entries are believed to be of the victim, it is difficult to come to a conclusion that the uncontroverted averments therein would amount to abetment as defined under section 107 of the Indian Penal Code. Be that as it may, even if such entries are believed to be of the victim, it is difficult to come to a conclusion that the uncontroverted averments therein would amount to abetment as defined under section 107 of the Indian Penal Code. On examination of the entries in the diary the learned Judge found that the only allegation against the petitioners was that they had asked the deceased to write an essay on Indian revolution and evaluate him. It did not disclose any direct act of instigation to commit suicide by the victim. This case is of no help to the petitioner for the simple reason that in the case at hand investigation culminated in the submission of the charge-sheet against the petitioner and the statement of witnesses under section 161 Cr.PC as well as the suicide note of deceased make out a prima facie case for proceeding against the petitioner for the offence under section 306 IPC. 12. For the reasons aforestated, no interference is warranted with the impugned proceeding and the order dated 11/6/2014 passed in Sessions Case No. 28(1) of 2014. 13. The application being CRR 2947 of 2014 is thus dismissed. No order as to costs. Interim order if any stands vacated. A copy of this order be communicated to the trial Court forthwith. Urgent Photostat certified copy of this order if applied for, be furnished to the applicant upon compliance of requisite formalities.