Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2043 (RAJ)

Abdul Sattar v. State of Rajasthan

2019-07-25

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Petitioner has preferred this Criminal Miscellaneous Petition seeking quashing of F.I.R. No.455/2019 and quashing of order dated 26.02.2013 passed by Judicial Magistrate, Dudu, District Jaipur, whereby the Court refused to accept the negative final report and took cognizance against the petitioner and against the order dated 20.02.2015 passed by Additional District & Sessions Judge, Camp Court Dudu, District Jaipur, whereby Revision Petition preferred by the petitioner was dismissed. 2. It is contended by counsel for the petitioner that the deceased-Chhitarmal committed suicide on 21.10.2009, he left a suicide note that present petitioner and Sayar Dhabai are responsible for his death. 3. It is contended that Police after due investigation came to the conclusion that the deceased earlier entered into an agreement to sale with Mahesh Jain, thereafter, for the same property, he entered into an agreement to sale with the present petitioner. Police has also come to the conclusion that the deceased was a member of the Scheduled Caste, he by posing himself as Brahmin entered into an agreement to sell the property first to Mahesh Jain and then to present petitioner. Police has submitted negative final report on the ground that petitioner had filed a suit for specific performance in the year 2005. As per the statement of wife of the deceased, petitioner was paying him money, whenever he was in need, she has also stated that deceased was in severe depression and attempted suicide earlier also. 4. It is contended that offence under Section 306 of I.P.C. is not made out as the very ingredients of Section 306 I.P.C. are missing for applying Section 306 of I.P.C., there has to be abetment. There is no evidence namesake that the petitioner ever abetted commission of suicide. 5. It is contended that the Magistrate was moved by the suicide note, wherein the deceased had mentioned that petitioner and Sayar Dhabai are responsible for his death. 6. Counsel for the petitioner has placed reliance on " Madan Mohan Singh vs. State of Gujarat & Anr., (2010) AIRSCW 5101 " wherein the Apex Court observed as under:- "In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. 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." 7. Counsel for the petitioner has also placed reliance on " Vadilal Panchal vs. Dattatraya Dulaji Ghadigaonkar & Anr., (1960) AIR SC 1113 ." 8. Counsel for the complainant has opposed the Criminal Miscellaneous Petition. It is contended that the Trial Court has taken cognizance on the basis of the suicide note and petitioner has availed the remedy of Revision. There is a bar under Sub- Section (3) of Section 397 of Cr.P.C. on filing second Revision by the same person, hence, Section 482 of Cr.P.C. cannot be invoked. 9. It is contended that petitioner had taken possession of the property of the deceased and was not paying the amount, as a result of which deceased committed suicide. There is a bar under Sub- Section (3) of Section 397 of Cr.P.C. on filing second Revision by the same person, hence, Section 482 of Cr.P.C. cannot be invoked. 9. It is contended that petitioner had taken possession of the property of the deceased and was not paying the amount, as a result of which deceased committed suicide. The fact that he was being threatened by the petitioner, is established from the statement recorded under Section 202 of Cr.P.C. 10. Counsel for the complainant has placed reliance on " Rakhi Mishra vs. State of Bihar & Ors., (2018) 1 RCrD(SC) 299 " wherein, High Court had quashed the proceedings. Apex Court held that only in exceptional circumstances when prima facie case is not made out the inherent power can be exercised. 11. Reliance has also been placed on " Narendra Singh Rajawat vs. State of Rajasthan,2018 4 RajCriC 1271 (Raj) " wherein it was held that at the time of passing of cognizance order, Magistrate has to see whether sufficient material is available or not. For this purpose, Magistrate has to consider the Police report and the preliminary evidence recorded on protest petition, thus, if he had applied his mind, then he is not bound to state the reasons as to why he is differing with the Police report. If on reading the preliminary evidence the Magistrate considers that there is sufficient material, he may proceed to take cognizance of the offences. 12. Reliance has also placed on " Sonu Gupta vs. Deepak Gupta & Ors., (2015) 3 SCC 424 ", wherein Apex Court held that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of offence. At this stage Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant. 13. I have considered the contentions and carefully gone through the negative final report submitted by the Investigating Officer as well as statement recorded under Sections 200 & 202 Cr.P.C. 14. Complainant-Bhanwar Lal Sharma happens to be nephew of the deceased-Chhitarmal. From perusal of the agreement to sale, it is revealed that the complainant as well as his uncle both posed themselves as belonging to Brahmin community. Complainant-Bhanwar Lal Sharma happens to be nephew of the deceased-Chhitarmal. From perusal of the agreement to sale, it is revealed that the complainant as well as his uncle both posed themselves as belonging to Brahmin community. On that basis they entered into an agreement to sale with the petitioner, whereas deceased and complainant are belonging to the SC category. 15. The fact that complainant is a member of SC, is revealed from the statement recorded before the Magistrate, wherein complainant has shown his caste "Gharba." It is also pertinent to note that prior to entering into agreement to sale with the petitioner, deceased Chhitarmal has also entered into an agreement to sale with Mahesh Jain who had filed suit against him and had obtained a stay order. Petitioner also filed a suit for specific performance in the year 2005 during the pendency of the suit, amount was obtained by the deceased from the petitioner, as is evident from the statement of wife of deceased. There is no evidence namesake that the petitioner ever abetted the commission of the offence. Petitioner has filed a suit for specific performance on the basis of agreement entered into between the complainant, deceased and the petitioner. 16. It is not in dispute that when a person has availed the remedy of Revision, he is barred from filing of second Revision. However, Apex Court has observed that to secure the ends of justice, High Court can still exercise the inherent powers but that has to be in exceptional cases. 17. The deceased and complainant posing themselves as members of Brahmin community, had entered into an agreement to sell the property, which otherwise they could not have sold except to member of SC, as there is a bar under Section 42 of the Rajasthan Tenancy Act on sale of property belonging to Scheduled Caste to General Caste. 18. Investigating Officer had dealt with each and every aspect of the matter and has drawn a correct conclusion while submitting negative final report. Courts below have not carefully perused the final report and have taken cognizance only because the deceased had in his suicide note mentioned that petitioner and Sayar Dhabai are responsible for his death. 19. 18. Investigating Officer had dealt with each and every aspect of the matter and has drawn a correct conclusion while submitting negative final report. Courts below have not carefully perused the final report and have taken cognizance only because the deceased had in his suicide note mentioned that petitioner and Sayar Dhabai are responsible for his death. 19. Apex Court in "Madan Mohan Singh vs. State of Gujarat & Anr." (supra) held that when there is no evidence between suicide and the alleged act on the part of the appellant the Courts have to be extremely careful as the main person is not available for cross-examination by the accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the accused to face the trial. 20. In order to bring out an offence under Section 306, I.P.C specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. In the facts and circumstances of the present case, I am of the view that there is no evidence namesake that petitioner abetted the commission of the offence of suicide hence it would be hazardous to ask the petitioner to face the trial. The present Criminal Miscellaneous Petition deserves to be allowed. 21. Continuation of proceedings against the petitioner would be abuse of process of the Court, hence, to secure the ends of justice, proceedings pending before the Courts below deserves to be and are accordingly quashed. 22. Stay application stands disposed.