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2023 DIGILAW 184 (ORI)

Narayan Besra @ Vesra v. State of Odisha

2023-04-11

R.K.PATTANAIK

body2023
JUDGMENT 1. Instant petitions under Section 482 Cr.P.C. are at the behest of the petitioners for quashment of the criminal proceeding in connection with G.R.Case No.178 of 2015 pending in the file of learned JMFC, Barpali on the grounds inter alia that the same is not tenable in law, inasmuch as, no prima facie case is made out against them vis-a-vis the alleged offences. 2. The petitioner in CRLMC No. 1447 of 2016 is the Headmaster of school, whereas, the other petitioners in CRLMC No. 2703 of 2016 are the teacher and the other staff of the school in question except petitioner No.5, who is an outsider. Since the petitioners have been chargesheeted in G.R. Case No. 178 of 2015 with a common allegation, so therefore, the petitions have been clubbed together for disposal by the following order. 3. In fact, an F.I.R. was lodged by opposite party No.6 alleging therein about the incident dated 3rd, 4th and 6th August, 2015 during and in course of which the informant's deceased husband who was also the Headmaster of the said school was allegedly detained, abused and humiliated by the petitioners in the immediate presence of the students which is with regard to the occurrences dated 3rd & 4th August, 2015 accusing him of misappropriating the school fund. The details of the allegations so made by opposite party No.6, the wife of the deceased stand described in the F.I.R. as at Annnexure-2. It has been alleged therein by opposite party No.6 that after the aforesaid incidents, the deceased husband lost his mental balance and committed suicide due to the mental and physical torture he was subjected to in the hands of the petitioners. On receipt of such report, Barpali P.S. Case No. 179 dated 7th August, 2015 was registered and investigation was commenced which finally resulted in submission of the chargesheet under Sections 223, 294 & 306 read with 34 IPC. Later to the submission of the chargesheet the learned court below took cognizance of the alleged offences in connection with G.R. Case No. 178 of 2015 vide Annexure-1 and summoned the petitioners. Later to the submission of the chargesheet the learned court below took cognizance of the alleged offences in connection with G.R. Case No. 178 of 2015 vide Annexure-1 and summoned the petitioners. The taking of cognizance of the offences by the learned court below and the entire criminal proceeding is currently under challenge by the petitioners predominantly on the ground that no prima facie case is proved and established against them and more particularly, the offence under Section 306 IPC allegedly for having abetted the commission of suicide by the deceased. 4. Heard Mr. Routray, learned counsel for the petitioners, Mr. Praharaj, learned counsel for the State-opposite Party Nos. 1 & 5 and Mr. Mohanty, learned counsel for opposite party No.6. 5. Mr. Routray, learned counsel for the petitioners submits that the petitioners are not responsible for the death of the deceased and in so far as the allegations in the F.I.R. i.e. Annexure-1 are concerned, it is based on hearsay evidence. Furthermore, it is submitted that the deceased was responsible for misappropriation of school fund as he did not handover the details of the charge and reconcile the financial irregularities, the fact which was intimated to the District Welfare Officer, Nabarangpur, who thereafter, instructed him to handover the charge and as such he was guilty of defalcation and misappropriation but unfortunately the local police failed to carry out investigation in a proper manner and ultimately chargesheeted them under the alleged offences including Section 306 IPC. It is claimed by the learned counsel for the petitioners that the deceased was directed to handover the charge between 31st July 2015 and 7th August, 2015 vide letter No. 1702 dated 29th July, 2015 of the District Welfare Officer, Nabarangpur as he had neither handed over any section wise charge list, the Utilization Certificates (U.C.) for the period of 2014-15 along with vouchers no mentioned the advance position in the original Cash Book etc. and in that connection, he had had been summoned but thereafter, for the reasons best known, he committed suicide as at no point of time, the petitioners ever ill-treated and misbehaved him, so therefore, according to Mr. Routray, learned counsel for the petitioners the investigation having not been properly conducted and concluded in perfunctory manner, the criminal proceeding in G.R. Case No. 178 of 2015 should be quashed. Apart from the above, Mr. Routray, learned counsel for the petitioners the investigation having not been properly conducted and concluded in perfunctory manner, the criminal proceeding in G.R. Case No. 178 of 2015 should be quashed. Apart from the above, Mr. Routray cites the following decisions of the Apex Court, such as, Mariano Anto Bruno & Another Vrs. The Inspector of Police 2022 Live Law (SC) 834; Madan Mohan Singh Vrs. State of Gujarat and Others (2010) 8SCC 628; State of West Bengal Vrs. Indrajit Kundu and Others (2019)10 SCC 188 ; and Geo Varghese Vrs. The State of Rajasthan & Another decided in Criminal Appeal No. 1164 of 2021 and disposed of on 5th October, 2021 besides Ramesh Kumar Vrs. State of Chhattisgarh (2001) 9 SCC 2008; Prahaladdas Vrs. State of M.P. and Others 1995 Supp (3) SCC 438; Nitai Dutta Vrs. State of West Bengal (2005) 2 SCC 659 and Vaijnath Kondiba Khandke Vrs. State of Maharashtra and Others (2018) 7 SCC 781 including a judgment of this Court in Santanu Vrs. State of Orissa Manu/OR/0073/2022 to contend that an offence under Section 306 IPC is not at all made out and the petitioners, in a facts and circumstances of the case, cannot be alleged of having abetted such death, the fact which was not duly considered by the learned court below while passing the order of cognizance dated 28th October, 2015. With the above submission, Mr. Routray, learned counsel for the petitioners submits that the criminal proceeding as a whole in G.R. Case No. 178 of 2015 pending before the court of learned Civil Judge, (J.D)-cum-JMFC, Barpalli should be quashed in exercise of Court's inherent jurisdiction. 6. On the contrary, Mr. Praharaj, learned counsel for the Stateopposite party Nos. 1 to 5 submitted that the deceased husband of opposite party No.6 after he suffered humiliation in the hands of the petitioners and on being instigated committed suicide, the fact which has been vindicated by the filing of the chargesheet against them. 6. On the contrary, Mr. Praharaj, learned counsel for the Stateopposite party Nos. 1 to 5 submitted that the deceased husband of opposite party No.6 after he suffered humiliation in the hands of the petitioners and on being instigated committed suicide, the fact which has been vindicated by the filing of the chargesheet against them. It is contended that the manner in which the deceased was subjected to embarrassment and humiliation at the school and that too in the immediate presence of the students and thereafter by an outsider, namely, petitioner No.5 who also abused and threatened him as well as the informants' family, since committed suicide soon thereafter, such death stands prima facie proved to have been abetted by all of them and considering the chargesheet as the learned court below has taken cognizance of the alleged offences, the petitioners shall have to face the enquiry and trial even for the offence under Section 306 IPC. 7. Mr. Mohanty, learned counsel for opposite party No.6 adopting the line of argument of Mr. Praharaj, learned ASC submits that the deceased husband of the informant who was an honest person and never misappropriated a single pie while serving as the Headmaster of the alleged school but then, the petitioners with ill-intention harassed him and as a result of humiliation he received from them, it triggered to take extreme step to end his life and therefore, a case under Section 306 IPC is prima facie made out besides other offences since was abused, assaulted and threatened during the alleged incidents and hence, the criminal proceeding pending before the learned court below in G.R. Case No. 17 of 2015 should not be quashed. 8. The death of the deceased husband of opposite party No.6 is on account of Asphyxia due to hanging. A copy of the post mortem report is made available to the Court along with the chargesheet as at Annexure-3 series. The chargesheet was filed against the petitioners under Section 306 IPC with allied offences as earlier mentioned, whereupon, the learned court below took cognizance of the same by order dated 28th October, 2015. A copy of the post mortem report is made available to the Court along with the chargesheet as at Annexure-3 series. The chargesheet was filed against the petitioners under Section 306 IPC with allied offences as earlier mentioned, whereupon, the learned court below took cognizance of the same by order dated 28th October, 2015. The crux of the challenge is that even if for the sake of argument but not admitting, the incidents said to have happened with the deceased husband of opposite party No.6 but by no stretch of imagination, an offence under Section 306 IPC is proved to have been committed by them. 9. Mr. Routray, learned counsel for the petitioners submits that the essential ingredients of the Section 306 IPC are not fulfilled nor any of the petitioners did ever had the requisite intention or mens rea to instigate the victim and drive him to commit suicide even assuming the allegations of harassment and humiliation meted out to him to be true. The challenge is more or less confined to the offence under Section 306 IPC for which the petitioners have been chargesheeted vide Anneuxre-3. The moot question is, whether, the materials on record prima facie make out a case of abetting suicide of the deceased husband of opposite party No.6? 10. As far as the jurisdiction of Section 482 Cr.P.C. is concerned, it is wide and expansive and not fettered with any limitation. Time and again, it has been held and reiterated by the Apex Court about the exercise of power and the limitations too and most prominently in the landmark judgment in the case of State of Haryana & Others. Vs. Ch. Bhajan Lal & Others reported in (1992) Supp(1) SCC 335. In fact, the Apex Court in the above decision held that it may not be possible to lay down any precise, clearly defined and inflexible guidelines or rigid formulae and to specify an exhaustive list of cases where such power should be exercised, however, by way of illustrations, categorized cases wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Furthermore in Madhavrao Jiwajirao Scindia & Another Vrs. Furthermore in Madhavrao Jiwajirao Scindia & Another Vrs. Sambhajirao Chandrojirao Angre & Others (1988)1 SCC 692 , it has been observed by the Supreme Court that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied is as to whether the uncontroverted allegations prima facie establish the offence; to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It is further held therein that the process of law cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and therefore, no useful purpose is likely to be served by allowing the criminal prosecution to continue, it may quash the proceeding even though it be at a preliminary stage. With regard to exercise of extra-ordinary jurisdiction under Section 482 Cr.P.C., the Apex Court in one of its earliest judgments in State of Karnataka Vs. L.Muniswamy & Others ( 1997) 2 SCC 699 concluded that the wholesome power under Section 482 Cr.P.C. to quash a proceeding should be exercised if a conclusion is reached at that allowing the proceeding to continue would be an abuse of process of court or that the ends of justice require that the proceeding ought to be quashed and in that regard, Courts have been invested with inherent power to achieve a salutary public purpose. It has also been held that a court proceeding ought not to be permitted to be used as a weapon of harassment or persecution and to achieve the ends of justice which is higher than the ends of mere law must be administered. So, law is well settled that the inherent jurisdiction may be exercised in a given case where it is necessary to prevent abuse of process of court or otherwise to secure the ends of justice even when a prosecution is at the threshold. In Ch. Bhajan Lal (supra), the Apex Court observed that if on consideration of the allegations in F.I.R. or complaint with no prima facie case made out or a cognizable offence not being disclosed or do not constitute any such cognizable offence, jurisdiction Section 482 Cr.P.C. may have to be exercised. In Ch. Bhajan Lal (supra), the Apex Court observed that if on consideration of the allegations in F.I.R. or complaint with no prima facie case made out or a cognizable offence not being disclosed or do not constitute any such cognizable offence, jurisdiction Section 482 Cr.P.C. may have to be exercised. In the instant case, the contention of the petitioners is that no offence under Section 306 IPC is established even on a bare reading and examination of the F.I.R. and considering the material evidence furnished along with chargesheet as at Annexure-3 series. 11. In Geo Varghese (supra), the Apex Court discussed the relevant provisions with regard to an offence of abetting suicide. It is held therein that suicide in itself is not an offence but an attempt to suicide is penalized under Section 309 IPC and it is abetment by anybody to be punishable under Section 306 IPC. In the said judgment, the Apex Court further observed that the IPC does not define the word 'suicide' but the ordinary dictionary means suicide is an act of self-killing, a word which is derived from a Latin term 'suicidium', 'sui' means 'oneself' and 'cidium' means 'killing'. Section 306 IPC penalizes abetment of suicide for being a criminal offence. The term 'abetment' is defined in Section 107 IPC, according to which, a person abets the doing of a thing if he instigates any person to do anything or engages with one or more other persons in a conspiracy for doing of that thing etc. and intentionally aids it by any act or omission in the doing of that thing. So, if someone instigates or incites someone to do something is said to be an act of abetment so defined in Section 107 IPC and anyone for such abetment in the commission of suicide to be punishable under Section 306 IPC. The word 'instigate' has been described as to goad, urge, forward, provoke, incite or encourage doing an act. As per the judgment in Geo Varghese, the scope and ambit of Section 107 IPC and its corelation with Section 306 IPC has been discussed in S.S. Cheena Vrs. The word 'instigate' has been described as to goad, urge, forward, provoke, incite or encourage doing an act. As per the judgment in Geo Varghese, the scope and ambit of Section 107 IPC and its corelation with Section 306 IPC has been discussed in S.S. Cheena Vrs. Vijay Kumar Mahajan and Another reported in (2010) 12 SCC 190 , wherein, it has been held that abetment involves a mental process of instigating a person 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 committing suicide, conviction cannot be sustained. In the said judgment, it is also held that 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 and it also requires an active or direct act which led the deceased to commit suicide finding no other option and that act must have been intended to push the deceased into such a position that he committed suicide. So on a consideration of the aforesaid judgments, the conclusion is that unless until the act of abetment is such which instigates or incites a person to commit suicide or any act is committed as a result which the deceased is left with no option except to commit suicide, under such circumstances alone, an offence under Section 306 IPC is made out. 12. In the instant case, Mr. Routray, learned counsel for the petitioners submits that there is no doubt that deceased had a suicidal death but then the petitioners cannot be held responsible for having abetted such death, a conclusion which is clearly deducible from the chargesheet and the connected materials. The hosts of decisions which have been relied on by Mr. Routray are more less on the foundation that unless instigation or incitement or direct involvement is alleged or it is shown that the person has been subjected to constant instigation that he committed suicide, in such situation, an offence under Section 306 IPC would be made out. 13. The hosts of decisions which have been relied on by Mr. Routray are more less on the foundation that unless instigation or incitement or direct involvement is alleged or it is shown that the person has been subjected to constant instigation that he committed suicide, in such situation, an offence under Section 306 IPC would be made out. 13. Furthermore, in Mariano Anto Bruno (supra), the Apex Court held that merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction under Section 306 IPC is not sustainable. In the said judgment, it is also observed that suicide is a personal tragedy that prematurely takes the life of an individual and has a continuing ripple effect dramatically affecting the lives of families and friends, however, the Court while adjudicating is not to be guided by emotion or sentiments but to base its decision considering evidence on record. 14. In view of the above decision, there has to have a positive action on the part of the accused which compelled the victim to commit suicide which makes out an offence abetment punishable under Section 306 IPC. If there is any harassment or any kind of allegation as to harassment is made but without any positive action proximate to the incident of suicide, conviction under Section 306 IPC cannot be maintained. In case where the victim left a suicide note, the Apex Court in Madan Mohan Singh (supra) was not impressed to hold that the accused therein was responsible for abetting suicide as in the said case due to a departmental action, the deceased lost his mental balance and thereafter, committed suicide and in that connection, the accused a superior officer was made to face prosecution under Section 306 IPC. In that context, the Supreme Court concluded that the prosecution cannot continue on the basis of such allegation even when the deceased left a suicide note and observed that the proceeding was rightly quashed in exercise of jurisdiction under Section 482 Cr.P.C. While dealing with the discharge application which was disallowed and reversed by the Calcutta High Court, the Supreme Court in Indrajit Kundu (supra) concluded that no offence under Section 306 IPC is made out as against the background facts that there was no any material to instigate or solicit the deceased to commit suicide. In case of cruelty against the husband, the Apex Court in Ramesh Kumar concluded that even if the ill-treatment subjected to her amounts to an offence punishable under Section 498-A IPC but that by itself does not make out an offence under Section 306 IPC in the event the wife committed suicide. Similarly in Netai Dutta (supra), the Apex Court considering a suicide note held that the accused was not responsible in instigating the deceased to commit the suicide as there is no allegation that he was harassing the deceased. Even though the accused in the said case was alleged to be responsible and his name was revealed in suicide note, however, the Supreme Court held that the accused cannot be fastened with the criminally liability as there is no reference of any act or incidence whereby he allegedly committed any willful act or intentionally added or instigated the deceased in committing suicide. Without elaborating further the Court is of the view that the abetment has to be established with positive acts or involvement of the accused which is to be held responsible for instigation. Mere abuse, humiliation or ill-treatment on couple of occasions without the requisite mens rea so as to drive the deceased to commit suicide cannot make out an offence under Section 306 IPC which is what has been held and observed by the Apex Court in all the above decisions. 15. Mere abuse, humiliation or ill-treatment on couple of occasions without the requisite mens rea so as to drive the deceased to commit suicide cannot make out an offence under Section 306 IPC which is what has been held and observed by the Apex Court in all the above decisions. 15. Now considering the F.I.R. as at Anneuxre-2, the Court finds that the deceased husband opposite party No.2 in response to the intimation received from authority had been to D.W.Os office on 3rd and 4th August, 2015 and during that time, the petitioners one of whom is the school Headmaster and another a teacher besides others abused him in filthy language and was manhandled by one of them, namely, the petitioner in CRLMC No. 1447 of 2016 with the allegation that he misappropriated the school fund and such incidents happened in the presence of the students. The said incidents have been revealed by the deceased to opposite party No.6. It is made to appear from the F.I.R. that one more incident took place on 6th August, 2015 involving petitioner No.5, an outsider and shopkeeper who had been to the house of the victim and had abused all of them. It is claimed by opposite party No.6 that the petitioners subjected the deceased husband to mental or physical torture with a threat that the act of misappropriation by him would be made public and aired in T.V. and even to report it to the Vigilance Department, whereafter, as alleged in the F.I.R, her husband said to have committed suicide during the night of 6th August, 2015 for having lost his mental balance due to the alleged overt acts committed by all the accused persons. The statements of opposite party No.6 and others recorded under Section 161 Cr.P.C. do reveal the incidents involving the petitioners who allegedly demanded money from him with the allegation that an amount of Rs. 10 lac of the school fund was misappropriated by him. The alleged incidents happened on 3rd or 4th August, 2015. As per the F.I.R. and the statement of opposite party No.6 under Section 161 Cr.P.C., the deceased was in a troubled mind and because of the ill-treatment he was subjected to by the petitioners was under stress and finally lost his mental balance and said to have committed suicide. The alleged incidents happened on 3rd or 4th August, 2015. As per the F.I.R. and the statement of opposite party No.6 under Section 161 Cr.P.C., the deceased was in a troubled mind and because of the ill-treatment he was subjected to by the petitioners was under stress and finally lost his mental balance and said to have committed suicide. During that time, opposite party No.6 being the wife of the deceased was at home and she found him mentally disturbed and on being asked had revealed her of the alleged mischief of the petitioners. The deceased revealed to opposite party No.6 that the petitioners confronted him and claimed that he had misappropriated the school fund while serving as its Headmaster and was threatened that such misappropriation would be reported to the Vigilance Department. Even assuming for the sake of argument that the incidents happened and the petitioners did commit the excess, the question is, whether, by such overt acts committed by them, an offence under Section 306 IPC is really made out. 16. As earlier discussed about the principle enunciated by the Apex Court and more elaborately in judgment in Geo Varghese (supra), there has to have a positive act with the requisite mental faculty to instigate the victim to commit suicide. If there is a continuous harassment by the accused and for that the victim is pushed to a corner leaving him no other option except to commit suicide, in such a case, it can be said that there has been an act of abetment punishable under Section 306 IPC. What was the conduct of the petitioners in the present case has been narrated in the F.I.R. so also by opposite No.6 in her statement under Section 161 Cr.P.C. The deceased for the reason claimed by the petitioners had been instructed by the District Welfare Officer to attend him on 3rd or 4th August, 2015, as it appears during that time, the alleged excess was committed by the petitioners one of whom is also an outsider. Why and whose instance petitioner No.5, an outsider involved himself in the incidents is not clearly revealed from the materials on record. Whatever be the case, the Court finds that within short time after being challenged by the petitioners, the deceased committed suicide. Why and whose instance petitioner No.5, an outsider involved himself in the incidents is not clearly revealed from the materials on record. Whatever be the case, the Court finds that within short time after being challenged by the petitioners, the deceased committed suicide. It is not a case that the petitioners continuously chased the victim and did the mischief over a period of time that he had no option except to end his life. For sporadic incidents or events suddenly happened or took place under peculiar circumstances during which the victim is humiliated or embarrassed and thereafter loosing mental balance or out of despair or on account of stress commits suicide, the person responsible for the alleged acts cannot be said to have instigated or aided him in committing the suicide. The case at hand is of such nature where it would be unfair to allege that the petitioners did the mischief with any bad intention instigating the deceased which resulted in his death by suicide. The conduct of the petitioners to be in natural course is not quite unusual as they challenged the deceased with the allegation of corruption for which the latter being frightened or afraid of action to follow committed suicide but to allege that it was due to any instigation or incitement would be unfair and unreasonable and like stretching things too far. Therefore, the conclusion is that the offence under Section 306 IPC considering and appreciating the materials on record cannot be said to have been committed by the petitioners though for the rest of the offences, they have to face the prosecution since it is prima facie established and accordingly, it is ordered. 17. In the result, the CRLMCs stand allowed in part. As a logical sequitur, the criminal proceeding in connection with G.R.Case No.178 of 2015 pending in the file of learned JMFC, Barpali is hereby quashed to extent and with reference to the offence under Section 306 IPC and not for the remainder for the reasons discussed herein above.