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2019 DIGILAW 307 (CAL)

SUKUMAR PRAMANICK v. MODAN SANDHUKA

2019-03-05

ASHA ARORA

body2019
JUDGMENT : ASHA ARORA, J. 1. Petitioners have assailed the order dated 14/6/2017 passed by the learned Additional Sessions Judge Fast Track Court III Krishnagar Nadia in Sessions Trial No. VI (June) 2017/ Sessions Case No. 48(9)2013 arising out of Kotwali P.S. Case No. 696 of 2011 dated 30/6/2011 under section 306/34 I.P.C. whereby a petition filed by the accused persons/petitioners herein praying for their discharge from the said case was rejected. By the order impugned the trial Court framed charge under section 306/34 IPC against the present petitioners and posted the case for evidence. Petitioners have sought for quashing of the aforesaid proceeding which is pending before the trial Court. 2. Bereft of unnecessary details, the facts leading to the instant application may be summarized as follows: On 30/6/2011 the opposite party no. 1 herein/complainant lodged a written complaint at Kotwali P.S. alleging offence under section 306 IPC against the petitioners. According to the aforesaid written complaint, deceased Uday Sadhukha, son of the complainant was working as a manager in the hotel of the petitioner no. 1 who opened a bank account in the name of Uday at UCO Bank, Sakshi branch and forcibly obtained his signature in the blank cheque book whereafter he took the cheque book and the pass book from him. In August 2010 Uday left the job in the hotel of the petitioner no. 1 and returned to his village at Senpur within P.S. Kotwali in the district of Nadia. The cheque for Rs. 9,00,000/- bearing Uday's signature being presented to the bank by the petitioner no. 1 was dishonoured whereafter a complaint under section 138 of the Negotiable Instruments Act was filed against Uday. It is further alleged that the petitioner nos. 1 and 2 would threaten Uday over phone. Being terrorized, Uday committed suicide on 26/6/2011. Prior to his death, Uday had written a suicide note alleging that the petitioner no. 1 was responsible for his suicide. On the basis of the aforesaid written complaint the criminal proceeding being Kotwali P.S Case No. 696 of 2011 dated 30/6/2011 under section 306 IPC was initiated. Investigation culminated in the submission of the charge-sheet under section 306/34 IPC against the petitioners herein. 3. Learned counsel for the petitioners argued that there is no proximate link or nexus between the alleged abetment and the commission of suicide. Investigation culminated in the submission of the charge-sheet under section 306/34 IPC against the petitioners herein. 3. Learned counsel for the petitioners argued that there is no proximate link or nexus between the alleged abetment and the commission of suicide. The complaint under section 138 of the Negotiable Instruments Act was filed against the deceased on 22/2/2011 and summons was ordered to be issued on 19/5/2011. Deceased committed suicide on 26/6/2011 prior to the issuance of bailable warrant against him on 4/7/2011. It is canvassed that the allegations in the FIR and the materials relied upon do not come within the purview of "abetment" as defined in section 107 IPC. Learned counsel contended that abetment involves a mental process of instigating or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in the commission of suicide, the offence under section 306 IPC is not attracted. To fortify his argument learned counsel for the petitioners relied upon the decisions of the Supreme Court in the case of Madan Mohan Singh versus State of Gujarat and Another reported in, (2010) 3 SCC(Cri) 1048 paragraph 12, Gangula Mohan Reddy versus State of Andhra Pradesh reported in, (2010) 1 SCC(Cri) 917 paragraphs 16 and 17, S.S. Chheena versus Vijay Kumar Mahajan and Another reported in, (2010) 3 CalCriLR 1 (Supreme Court) paragraph 28 and M. Mohan versus State Represented by the Deputy Superintendent of Police reported in, (2011) 3 SCC 626 Paragraphs 17, 37, 44. Learned counsel for the petitioners also referred to the case of State of Karnataka versus L. Muniswamy and Others reported in, (1977) 2 SCC 699 paragraphs 4 and 10 in support of the submission that at the stage of framing charge it is the duty of the trial Court to consider judicially whether the materials relied upon if unrebutted, are sufficient to sustain the charge for the offence alleged. 4. Repudiating the submissions on behalf of the petitioners, learned counsel for the State/opposite party no. 2 countered that the suicide note of the deceased coupled with the statement of witnesses recorded under section 161 CrPC clearly make out a prima facie case for the offence under section 306 IPC against both the petitioners. 5. Learned counsel for the opposite party no. 2 countered that the suicide note of the deceased coupled with the statement of witnesses recorded under section 161 CrPC clearly make out a prima facie case for the offence under section 306 IPC against both the petitioners. 5. Learned counsel for the opposite party no. 1/defacto complainant pointed out that in his petition of complaint under section 138 of the Negotiable Instruments Act the petitioner no. 1 alleged that the accused (deceased) misappropriated a sum of Rs. 9,00,000/- whereas in course of hearing of the present application it is contended that the deceased took a loan of the aforesaid amount from the petitioner no. 1. It is argued that the offence alleged against the petitioners is substantiated by the materials collected during the investigation. Further submission is that whether the petitioners abetted the commission of suicide and whether they had the intention or mens rea to commit the offence are questions of fact to be decided by the trial Court. It is argued that at the stage of framing charge the probative value of the materials on record cannot be looked into. At this stage the Court has to consider whether the materials relied upon by the prosecution, taken at their face value, disclose the offence alleged and whether there is ground for presuming that the accused has committed the offence alleged. To buttress his argument learned counsel for the opposite party no. 1 referred to the case of Chitresh Kumar Chopra versus State (Government of NCT of Delhi) reported in, (2009) 16 SCC 605 paragraphs 4 and 13, Didigam Bikshapathi and Another versus State of Andhra Pradesh reported in, (2008) 2 SCC 403 paragraphs 3 and 4, Praveen Pradhan versus State of Uttaranchal and Another reported in, (2012) 9 SCC 734 and Amit Kapoor versus Ramesh Chander and Another reported in, (2012) 9 SCC 460 paragraph 13. 6. It is well settled by a plethora of decisions of the Supreme Court that at the stage of framing charge or while considering a petition for discharge of the accused, it is not for the Magistrate or the trial Judge to hold a roving inquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial. The Court is required to find out if the facts emerging from the materials on record taken at their face value constitute the offence alleged. The Court is required to find out if the facts emerging from the materials on record taken at their face value constitute the offence alleged. Disputed questions of fact are matters to be decided during the trial. In this context, it may be useful to quote the relevant paragraphs 17 and 18 of the Judgment of the Supreme Court in the case of Amit Kapoor versus Ramesh Chander and another reported in, (2012) 9 SCC 460 which reads as follows: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exist, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code." "18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases." 7. In paragraph 19 of the judgment in Amit Kapoor's Case (Supra) the Supreme Court iterated that at the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. At this juncture, it may be beneficial to refer to the relevant paragraph 11 of the judgment of the Supreme Court in the case of Bhaskar Lal Sharma and another versus Monica and others reported in, (2014) 3 SCC 383 which is quoted herein below: "11. The facts, as alleged, therefore will have to be proved which can only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence." 8. It may also be worthwhile to quote paragraphs 20 and 21 of the judgment in the case of Ashish Chadha versus Asha Kumari and Another reported in, (2012) 1 SCC 680 wherein the Supreme Court held as follows: "20. The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether the evidence collected by the prosecution discloses prima facie case against the accused or not." "21. In this connection, we may usefully refer to the observations of this Court in Munna Devi v. State of Rajasthan: (SCC p. 632, para 3) "3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." 9. Reverting to the case in hand, I find that the FIR, suicide note and the statement of the wife as well as the father of the deceased speak of various acts of the petitioners due to which the deceased was compelled to take the extreme step of committing suicide. It is evident from the materials aforesaid that the deceased, unable to bear the mental harassment to which he was subjected by the acts of the petitioners, was pressurized to put an end to his life. From the suicide note as well as from the statement of the wife and father of the deceased it appears that the petitioner no. 1had obtained the signature of the deceased on blank cheques and would blackmail him. The materials also disclose that the petitioners would threaten the deceased. Prima facie, the conduct of the petitioners was such that the deceased was left with no other option except to end his life. At this juncture it may be useful to refer to paragraph 6 of the judgment in the case of Varala Bharath Kumar and another versus State of Telangana and another reported in, (2017) 3 SCC(Cri) 740 which is quoted herein below: "6. It is by now well settled that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court, either to prevent abuse of process of the court or otherwise to secure the ends of justice. It is by now well settled that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court, either to prevent abuse of process of the court or otherwise to secure the ends of justice. Where allegations made in the first information report/the complaint or the outcome of investigation as found in the charge-sheet, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out the case against the accused; where the allegations do not disclose the ingredients of the offence alleged; where the uncontroverted allegations made in the first information report or complaint and the material collected in support of the same do not disclose the commission of offence alleged and make out a case against the accused; where a criminal proceeding is manifestly attended with male 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, the power under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure may be exercised." 10. In the case in hand, the materials relied upon disclose a prima facie case for proceeding against both the petitioners for the offence under section 306 IPC. It is certainly not a fit case for exercising the power under section 482 of the Code of Criminal Procedure. 11. Madan Mohan's case (Supra) relied upon by the learned counsel for the petitioner is distinguishable on facts from the case in hand for the simple reason that in the aforesaid case, it was held that there was nothing in the FIR or the suicide note to substantiate the offence alleged against the appellant/accused. It was observed in the said case that the suicide note of deceased implicating the appellant/accused was more in the nature of departmental complaint, suggesting some mental imbalance on the part of deceased which he himself described as depression. The accused was the superior officer of the deceased. It was observed in the said case that the suicide note of deceased implicating the appellant/accused was more in the nature of departmental complaint, suggesting some mental imbalance on the part of deceased which he himself described as depression. The accused was the superior officer of the deceased. It was held that unless there is specific allegation and material of definite nature, it would be hazardous to ask the appellant/accused to face trial since there was nothing in the FIR or in the suicide note to prima facie satisfy the ingredients of the offence alleged. In the case in hand, there is specific allegation against the petitioners in the FIR, in the suicide note as well as in the statement of the wife and father of deceased recorded under section 161 CrPC. It is contended therein that the petitioners would blackmail the deceased and threaten him over phone. The case of Gangula Mohan Reddy (Supra) is also of no help to the petitioners. In the aforesaid case the appellant was aggrieved by the judgment of conviction and sentence under section 306 IPC passed by the Assistant Sessions Judge which was upheld by the High Court. It was held in the said case that conviction under section 306 IPC could not be sustained since there was no evidence on record wherefrom an inference may be drawn that the appellant abetted the commission of suicide of the deceased. In the case in hand trial is yet to commence. The decision referred is therefore not apposite for the purpose of the present appellant. The case of S.S Chheena (Supra) also does not enure to the benefit of the petitioners being clearly distinguishable on facts and the materials relied upon. For the same reason, M. Mohan's Case (Supra) finds no application to the case in hand. In the said case it was held that the appellants were not even remotely connected with the occurrence leading to the commission of suicide by the deceased. In our present case the materials disclose a prima facie case against the petitioners. Reference to the case of State of Karnakata versus L. Muniswamy (Supra) is also of no avail. In the said case it was held that the appellants were not even remotely connected with the occurrence leading to the commission of suicide by the deceased. In our present case the materials disclose a prima facie case against the petitioners. Reference to the case of State of Karnakata versus L. Muniswamy (Supra) is also of no avail. In the said case it was held that the High Court can, under its inherent power, quash the proceedings on the ground of insufficiency of evidence but in the case in hand, as stated hereinbefore, there is sufficient material for proceeding against the petitioners for the offence alleged. 12. For the reasons aforestated, I do not find any merit in the application being CRR 2096 of 2017 which is accordingly dismissed. 13. The application being CRAN 874 of 2018 also stands dismissed. 14. No order as to costs. 15. It is made clear that no opinion has been expressed by this Court on the merits of the case and the trial Court will proceed with the case in accordance with law without being influenced by any observation made hereinabove. 16. Urgent photostat certified copy of this judgment and order if applied for, be given to the applicant upon compliance of requisite formalities.