The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1081 of 2024 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Narayan Behera ……. Petitioner -versus- State of Orissa & another ……. Opp. Parties For the Petitioner : Mr. D.P. Dhal, Sr. Advocate For the Opp. Parties : Mr. P.K. Maharaj, Addl. Standing Counsel (for Opp. Party No.1) CORAM:
Legal Reasoning
“12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drove the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the Page 5 of 12 deceased to go and die. This fact had escaped notice of the courts below.” Similarly, reliance has been made upon Paragraphs 44 to 49 of the judgment of the Hon’ble Apex Court in the case of M. Mohan (supra), which reads as follows:- “44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained 45. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide. 46. In V.P. Shrivastava v. Indian Explosives Ltd. this court has held that when prima facie no case is made out against the accused, then the High Court ought to have exercised the jurisdiction under section 482 of the 2 Cr.P.C. and quashed the complaint. 47. In a recent judgment of this Court in Madan Mohan Singh v. State of Gujarat and Anr., this Court quashed the conviction under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings. 48. In the instant case, what to talk of instances of instigation, the appellants. There is also no proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.1.2005. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hyper-sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. Human there are even no allegations against Page 6 of 12 sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self- respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner? 49. On a careful perusal of the entire material on record and the law, which has been declared by this Court, we can safely arrive at the conclusion that the appellants are not even remotely connected with the offence under Section 306 of the I.P.C. It may be relevant to mention that criminal proceedings against husband of the deceased Anandraj (A-1) and Easwari (A-3) are pending adjudication.” Relying upon the aforesaid precedence, learned Senior Advocate has contended that as a key ingredient for making out an offence under Section 306 of the IPC there should be clear mens rea to commit the offence of abatement of suicide on the part of the accused, it requires commission of direct or active act by the accused which led deceased to commit suicide having no other option and such act must be intended to push the victim into a position that he commits suicide which is clearly missing in the facts of present case as has been missing in the relied upon judgments, wherein the Hon’ble Apex Court quashed the criminal proceedings initiated against the accused persons under Section 306 of the IPC. 7. On the other hand, Mr. P.K. Maharaj, learned Additional Government Advocate has vehemently opposed the petition. It has been argued that the Page 7 of 12 present case is of a suicide in farmer family because of inability to repay a private loan, which is prevalent in the society now a days, which has become menace. In the present case, the complainant has lost his only son due to mental pressure created by the accused persons by repeatedly insulting and threatening the deceased in public glare. It has been strenuously argued by Mr. Maharaj that in view of the seized suicide note which clearly indicates that the petitioner and his father and brother have been pressurizing the deceased to transfer their share of land, is enough to make out a prima facie case against the accused persons to be subjected to trial for the offences punishable under Sections 306/34 of the IPC. It has been further argued by the learned Counsel for the State that just before the death of the deceased, the deceased had categorically disclosed that he had taken the drastic step of consuming poison as he could not bear the mental pressure that he was put to by the accused persons. With regard to reliance upon judicial pronouncements, learned counsel for the State has argued that the same are very much distinguishable on facts. Moreover, prima facie case against the petitioner and other accused persons have been adequately made out, therefore, learned S.D.J.M., Titilagarh has Page 8 of 12 rightly taken the cognizance of the offences punishable under Sections 306/34 of the IPC and this Court should not interfere with it at this stage. 8. I have heard the learned counsel for both the parties at length and have also perused the materials available on record. The statement recorded under Section 161 of Cr.P.C. of Biswanath Behera is of some relevance, who in his statement has categorically disclosed that after the condition of the deceased deteriorated, he took the deceased to Titilagarh for treatment. While taking the deceased to Titilagarh, the deceased disclosed to him that having been under tremendous pressure to register the land in favour of the accused persons and being unable to sustain the mental pressure anymore, the deceased took the drastic step of consuming poison. Although, the probative value of the statements of the witnesses cannot be gone into at this stage, but the statements of the witnesses as well as the factum of suicide note containing clear indication of mental harassment suffered by the deceased makes the mental pressure being felt by the deceased quite palpable. The contents of the suicide note states that:- “I Kunja Bihari Behera S/o Sudama Behera R/o Beherabhatt, PS Sindhekela, District Bolangir, declared in writing that my father had taken a loan of Rs.2 Lakhs by mortgaging our land to one Harihar Behera of Bolangir. In that regard Harrihar Behera and his two sons have been threatening and scolding me by saying that “Your life is worthless, you are Page 9 of 12 not able to do any work even though you are so grown up. Your life is of no worth and is useless. I am losing by mental balance. In case I take poison any day these three persons will be responsible.” Soon after writing this note the deceased consumed poison on 13.01.2023 and latter during the course of treatment he died on 20.02.2023. Thus, at this stage it cannot be said that deceased was not at all under mental stress because of the conduct of the petitioner and his father and brother. 9. The Hon’ble Supreme Court in Paragraphs - 8 to 13 of its judgment in the case of Rajeev Kourav vs. Baisahab and Ors. Reported in (2020) 3 SCC 317 while dealing with a similar case of abatement of suicide has held as follows:- “8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. 9. Mr.Shoeb Alam, for Respondent Nos.1 to 3 relied upon several judgments of this learned counsel appearing Page 10 of 12 Court to submit that allegations only disclose a case of harassment meted out to the deceased. The ingredients of Section 306 and 107 IPC have not been made out. It is submitted that there is nothing on record to show that the Respondents have abetted the commission of suicide by the deceased. He further argued that abetment as defined under Section 107 IPC is instigation which is missing in the complaint made by the Appellant. He further argued that if the allegations against Respondent Nos.1 to 3 are not prima facie made out, there is no reason why they should face a criminal trial. 10. We do not agree with the submissions made on behalf of Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, 6 | P a g e while adjudicating a petition filed under Section 482 CrPC 11. Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos.1 to 3 which she was not able to bear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr. P.C. 12. We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos.1 to 3 would have a fair opportunity to prove their innocence. 13. For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed.” 10. This Court at this stage neither can go into the issue of intention of the accused persons in abatement of suicide by the deceased nor for that matter this Court can go into the issue as to whether there was instigation caused by the accused to push the deceased to take such drastic step. However, suffice to Page 11 of 12 say that from the material available on record, a prima facie case appears to be made out, which persuaded the learned Court below to take cognizance of the offence. I am afraid that evaluation of evidence at this stage would virtually be conducting a mini trial. Therefore, at this stage, I am not inclined to give indulgence to the petitioner rather relegate the petitioner to urge all the points before the learned Court below at appropriate stage. 11.
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 14.05.2024 Date of Judgment : 20.06.2024 S.S. Mishra, J. The petitioner in the present petition has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure (Cr.P.C) seeking quashing of order of taking cognizance of the offence under Sections 306/34 of the Indian Penal Code ( IPC) passed by the learned S.D.J.M., Titilagarh on the basis of the charge-sheet dated 21.01.2024 laid down against the petitioner, his father (Harihar Behera) and his brother (Laxman Behera) in G.R. Case No.81 of 2023 arising out of Sindhekela P.S. Case No.46 of 2023. 2. Necessary facts for the purpose of deciding the present petition sans avoidable details are as follow:- The father of the deceased lodged an FIR by giving a written complaint dated 06.03.2023. In the FIR it has been stated that the complainant, namely, Sudama Behera had taken a loan of Rs.2,00,000/- against his share of land of Ac.1.50 decimals from accused no.2 Harihara Behera. Both the son of accused no.2, i.e., Narayana Behera (Accused no.1) and Laxman Behera (Accused no.3) used to scold and threatened his son, i.e., deceased Kunja Behari Behera for repayment of the loan amount. His son having suffered scolding multiple times at the hands of all the three persons and being humiliated was forced to take extreme step in life by consuming poison on 13.02.2023 leaving behind a suicide note. During his treatment, the deceased died on 20.02.2023 at VIMSSAR, Burla. 3. In the course of investigation, police seized the alleged suicide note and audio clipping of the deceased and the same has been sent for forensic analysis. The statements of the complainant and other witnesses have also been recorded by the Investigating Officer. Page 2 of 12 4. After completion of the investigation, charge-sheet has been laid down against all the three accused persons in the Court of learned S.D.J.M., Titilagarh. The learned S.D.J.M., Titilagarh vide order dated 23.01.2024 took cognizance of the offences punishable under Sections 306/34 of the IPC against all three accused persons in G.R. Case No.81 of 2023 arising out of Sindhekela P.S. Case No.46 of 2023. 5. The petitioner before this Court is challenging the aforesaid order of taking cognizance of offences taken by the learned Court below and prays for quashing of the same. 6. Mr. D.P. Dhal, learned Sr. Advocate appearing for the petitioner has vociferously argued that the Criminal Law has been set on motion against the petitioner with mala fide intent to avoid the repayment of the loan amount by the complainant by lodging a false and fabricated FIR. Mr. Dhal has drawn attention of this Court to the fact that the deceased had consumed poison on 13.02.2023 and he died on 20.02.2023 while the FIR has been lodged by the complainant on 06.03.2023. Learned Sr. Advocate has argued that neither the FIR nor the charge-sheet filed after the investigation whisper any kind of explanation about the inordinate delay in lodging of the FIR. This fact itself gives credence to his argument that the allegations made Page 3 of 12 in the FIR and the statements recorded thereafter is nothing but an afterthought and pre-planned attempt to avoid repayment of the borrowed amount by implicating the petitioner, father and his brother in false criminal case. Further, it has been argued by the learned Senior Advocate appearing for the petitioner that no case of offences under Sections 306/34 of the IPC is made out against the petitioner even if the allegation made in the charge-sheet as well as the material forming the part of the charge-sheet is taken on its face value to be true as such material does not disclose the essential ingredient necessary for initiating the trial for the offences punishable under Sections 306/34 of the IPC. Learned Senior Advocate for the petitioner in order to buttress his argument has relied upon the ratio laid down by the Hon’ble Supreme Court in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. reported in (2022) 5 SCC 371 and M. Mohan vs. State represented by the Deputy Superintendent of Police reported in (2011) 3 SCC 626. It has been argued on behalf of the petitioner that the ratio laid down by the Hon’ble Apex Court in the above cited judicial pronouncements squarely covers the case of the petitioner. Learned Senior Advocate has relied upon Paragraph-12 of the judgment in the case of Sanju @ Sanjay Singh Sengar (supra) to elucidate Page 4 of 12 upon the essential ingredients of offence punishable under Section 306 of the IPC, which reads as follows:- 'instigation'. The word
Decision
In view of the above discussion, I am of the considered opinion that no grounds are made out to entertain the present petition. However, the petitioner/accused persons can raise all the contentions discussed above before the learned Court below at appropriate time/stage and the learned Court below shall do well to decide the issue in accordance with law without being influenced by any observation made herein above. 12. With the above observation, the CRLMC is accordingly disposed of. ……………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 20th of June, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Jul-2024 18:13:10 Page 12 of 12