The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 1890 of 2023 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) Rabindra Singh Chauhan and another ……. Petitioners -Versus- State of Orissa & another ……. Opposite Parties For the Petitioner : Mr. Milan Kanungo, Senior Advocate For the Opp. Party No.1:Mr. S.R. Raula, Additional Standing Counsel For the Opp. Party No.2:Mr. Jyotirmaya Sahoo, Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.08.2024 Date of Judgment: 29.10.2024 S.S. Mishra, J. 1. The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of the Cr. P.C. seeking quashing of the criminal prosecution initiated against them at the instance of the opposite party No.2 and also seeking quashing of the order dated 17.03.2023 passed by the learned J.M.F.C., Digapahandi in 1.C.C. Case No.3 of 2023, whereby the cognizance of the offence under Section 306 & 34 of the IPC has been taken against them. 2. It is pertinent to mention here that the opposite party No.2 initially lodged an F.I.R. on 14.03.2020 at Digapahandi Police Station bearing Digapahandi P.S. Case No.120 of 2022 for commission of the offence punishable under Section 306/34 of the IPC against the petitioners precisely, on the allegation that his brother Sanjay Dora has died on 23.08.2021 at the M.K.C.G. Medical College & Hospital, Berhampur, while under treatment. He alleged that Sanjay Dora has committed suicide and the conduct of the petitioners have caused abetment, which led his brother to take the extreme step of his life. 3. The police after thorough investigation of the case filed the Final Form on 02.11.2022 arriving at the conclusion that, no case is made out against the petitioners and the case is closed being a case of mistake of facts and it is also mentioned by the police in the report that the dispute is purely civil in nature. There is no iota Page 2 of 19 of truth regarding the involvement of the petitioners. Rather, due to the family dispute and the brotherly enmity, the deceased had committed suicide. 4. On 08.02.2023, the opposite party No.2 filed a protest petition, which was registered as 1.C.C. Case No.3 of 2023. After recording of the pre–summoning evidence and enquiry under Section 200/202 of the Cr.P.C., the learned J.M.F.C., Digapahandi vide order dated 17.03.2023, had taken the cognizance of the offence punishable under Section 306/34 of the IPC against the
Facts
petitioners. The petitioners are aggrieved by the same, hence this petition. 5. The precise allegation bereft of the details in the complaint is that the opposite party No.2, who is the sole proprietor of M/s. Dora Construction, had taken the work order of AFCONS Infrastructure Limited for its Project Tunnel T49-B Ramban District in the J & K State and did the work from 01.08.2014 to the middle of 2020. It is alleged that, he authorized his brother Page 3 of 19 Sanjay Dora (deceased) to take care of the job site and to deal with the financial matters etc. and make payment to the labourers. Further, it is stated that one of the Company personnel pressurized his deceased brother through the Tahasildar not to demand the labour payment, as a result of which on 02.09.2020, vide letter and email, the opposite party No.2 requested the Personnel Department of the Company not to harass him. In spite of the requests of the opposite party No.2 as well as his brother Sanjay Dora (the deceased) to the petitioners for residue payment, they neglected and misbehaved. Out of frustration, he returned to his native village Chakrapur. Due to non-payment of the outstanding dues by the petitioners and the burden of loan on them, Sanjay Dora, the deceased, consumed pesticide on 22.08.2021 at 7 P.M. in his house. He was taken to the Government Hospital, Digapahandi by the opposite party No.2 and then he was shifted to the M.K.C.G. Medical College & Hospital, Berhampur. While undergoing treatment at the M.K.C.G. Medical College & Hospital, Berhampur on 23.08.2021 Page 4 of 19 at 10.40 A.M., he had expired. As such, it is alleged that the petitioners are responsible for the death of the brother of the O.P. No.2, hence this case.
Legal Reasoning
“9. In a recent judgment of this Court in Kamalakar vs. State of Karnataka in Criminal Appeal No.1485 of 2011 (decided on 12.10.2023), one of us (Vikram Nath J.) explained the ingredients of Section 306 IPC. The Court has held as follows:- this Section, 8.2. Section 306 IPC penalizes abetment of commission of suicide. To charge someone under the prosecution must prove that the accused played a role in the suicide. Specifically, the accused's actions must align with one of the three criteria detailed in Section 107 IPC. This means the accused either encouraged the individual to take their life, conspired with others to ensure the person committed suicide, or acted in a way (or failed to act) which directly resulted in the person's suicide. 8.3. In Ramesh Kumar v. State of Chhattisgarh, this Court has analysed different meanings of "instigation". The relevant para of the said judgment is reproduced herein: "20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of Page 7 of 19 instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” 8.4. The essentials of Section 306 IPC were elucidated by this Court in M. Mohan v. State, as under: "43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605: (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 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. Page 8 of 19 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." 8.5. The essential ingredients which are to be meted out in order to bring a case under Section 306 IPC were also discussed in Amalendu Pal alias Jhantu v. State of West Bengal in the following paragraphs: "12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. 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 in terms of Section 306 IPC is not sustainable. 13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said Page 9 of 19 offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. 8.6. On a careful reading of the factual matrix of the instant case and the law regarding Section 306 IPC, there seems to be no proximate link between the marital discord between the deceased and the appellant and her subsequent death by burning herself. The appellant has not committed any positive or direct act to instigate or aid in the commission of suicide by the deceased." 10. On a perusal of the above, and relying upon this Court's previous judgments discussing the elements of Section 306 IPC, the following principles emerge: 10.1 Where the words uttered are casual in nature and which are often employed in the heat of the moment between quarrelling people, and nothing serious is expected to follow from the same, the same would not amount to abetment of suicide. [Swami Prahaladdas v. State of M.P. 1995 Supp. (3) SCC 438, Paragraph 3; Sanju v. State of M.P. (2002) 5 SCC 371, Paragraph 12] 10.2 In order to constitute 'instigation', it must be shown that the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide. The words uttered by the accused must be suggestive of the consequence [Ramesh Kumar v. State of Chhatisgarh (2001) 9 SCC 618, Paragraph 20] 10.3 Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605, Paragraph 20] Page 10 of 19 10.4 There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide [Amalendu Pal v. State of West Bengal (2010) 1 SCC 707, Paragraph 12-14] 10.5 The accused must have intended or known that the deceased would commit suicide because of his actions or omissions [Madan Mohan Singh v. State of Gujarat (2010) 8 SCC 628] 11. Applying the above yardstick to the facts of the present case in question, even if we take the case as a whole and test the prosecution case on a demurrer, it could not be said that the actions of the accused instigated Kousalya to take her life or that he conspired with others to ensure that the person committed suicide or any act of the appellant or omission instigated the deceased resulting in the suicide. 12. Broken relationships and heart breaks are part of everyday life. It could not be said that the appellant by breaking up the relationship with Kousalya and by advising her to marry in accordance with the advice of her parents, as he himself was doing, had intended to abet the suicide of Kousalya. Hence the offence under Section 306 is not made out. 9. On the other hand, Mr. S.R. Roul, learned Additional Standing Counsel as well as Mr. Jyotirmaya Sahoo, learned counsel for the Opp. Party No.2 (complainant) strongly opposed the petition. It has been argued that the accused persons had intentionally neglected the claims and reduced the amount of M/s. Dora Page 11 of 19 Construction, which led to cause financial distress and Sanjay Dora (deceased) slip into depression and subsequently he ended his life. The learned counsel for the Opp. Party No.2 has further submitted that when the deceased (Sanjay Dora) approached for residue payment of their work orders before Ravindra Singh Chauhan (G.M., AFCONS) And Chandrasekhar Dikshit (A.G.M., AFCONS), they misbehaved and ill-treated him, which caused him to lose his mental balance. Learned Additional Standing counsel has submitted that learned J.M.F.C, Digapahandi, Ganjam has taken the cognizance after enquiry and recording of the preliminary evidence U/s.202 and U/s.200 of Cr.P.C. The materials already came on record against the petitioners cannot be discarded and quashing the proceeding at this stage will hinder the due process of law. 10. By rebutting the aforementioned contention, Mr. Kanungo, learned Senior Advocate had further submitted that, even if for the sake of argument the fabricated story of the complainant is admitted, and if any payment was due from the AFCONS Page 12 of 19 Infrastructure Limited to M/s. Dora Constructions, there were numerous recourses available under law to realize the outstanding, but commission of suicide was not the answer to that problem in as much as giving a colour of criminal offence otherwise to settle their score is not tenable. By setting the criminal law into motion, after the lapse of seven months from the alleged incident is truly an abuse of process of law. It was further submitted by the learned senior counsel that the complainant had not brought anything on record to show that the conduct of the petitioners had any proximate link or nexus between the deceased returning to his native village and committing suicide with the denial of the payment due to M/s. Dora Construction by AFCONS. As there remains long gap between alleged harassment and commission of suicide, so it cannot be inferred that the petitioner are the author of the crimes who instigated the brother of the complainant to commit suicide. Page 13 of 19 11. Noteworthy to mention that the initial FIR registered on the behest of the complainant/opposite party no 2 undergone rigors of extensive investigation only to arrive at the following conclusion: From the fact, circumstances and evidence it is case of Mistake of Fact U/S-306/34 IPC against the FIR named accused persons Chandrasekhar Dixit, Rabendra Singh Chwohan and Pramod Kumar AFCONS infrastructure, LTD J&K. There is no iota of truth regarding the involvement of above named persons, abetting the commission of suicide by Sanjay Dora rather due to family dispute and brotherly enmity Sanjay Dora committed Suicide when the Complt Udaya Dora asked regarding the transactions received from AFCONS infrastructure, LTD J&K. There is no credibility of the allegation the allegation made by M/S Dora Construction Udaya Dora is baseless fabricated in motivated and misc conceived, from the statement of the independent witnesses it is established that the Complt intended to harass the FIR named accused and mobilizing Police to get lump sum amount. From the fact, circumstances, testimony of witnesses enumerated above it is a case of mistake of fact U/S- 306/34 IPC. Hence submitted F.F. Vide Digapahandi F.F. No 369, Dt- 30.10.2022 declaring the case as Final Report Mistake Fact U/S-306/34 IPC with prayer to the Hon' ble Court to accept the same. 12. The complainant/O.P.No2 being dissatisfied filed protest petition and led pre-summoning evidence. On perusal of the statement of the complainant recorded U/s. 200 Cr.P.C., it reveals that on dtd.02.09.2020 at about 10.30 PM the Tahasildar, local Page 14 of 19 passenger and personnel from the petitioner company had taken the brother (deceased) of the complainant with them and they have harassed him. Again complainant has stated that he had reported such incident to Personal Manager through mail. After such incident his brother had met the G.M. and AGM of that company for supply of the work order and other details but in spite of providing such, they harassed Sanjay Dora (the deceased). He had further stated that, his brother (deceased) after such incident returned to his village and used to remain depressed, and on 22.08.2021 at about 7 P.M the deceased Sanjaya Dora had committed suicide. From the aforementioned preliminary evidence its evident that the alleged harassment meted out to the deceases on 02.09.2020 by the Tahasildar and company personnel whereas the incident has taken place after lapse of about one year on 22.08.2021. Hence there was admittedly no proximate link between the alleged conduct of the petitioners, which could have abetted the deceased to take the extreme step. The ingredients of Page 15 of 19 the “abetment” are totally absent in this present case. As there was no material to show that immediately prior to commission of suicide there was harassment meted out to the deceased and the deceased was left with no other option rather to commit suicide. Specific mens rea of abetment on the part of the present petitioners is absent in the allegations of the complainant. In the judgment of the Hon’ble Supreme Court in the case of M. Mohan V. The State Represented By The Deputy Superintendent Of Police reported in (2011) OCR (SC) – 961 it’s held as under: 27. The appellants submitted that even if the prosecution story that she was denied permission to use the car on 14th January, 2005 and the suicide had taken place on 18th January, 2005 is believed, it cannot be said that the suicide by the deceased was the direct result of the expressions exchanged between the deceased and Easwari (A-3) on the aforesaid 14th January, 2005. Viewed circumstances independently, still the ingredients of the “abetment” are totally absent in the case at hand. In these facts and circumstances, to compel the appellants to face the rigmarole of a trial would be an abuse of law. from 45. 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. Page 16 of 19 46. 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. 47. In V.P. Shrivastava v. Indian Explosives Limited and Others (2010) 10 SCC 361, 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 Cr.P.C. and quashed the complaint. 48. In a recent judgment of this Court in the case of Madan Mohan Singh v. State of Gujarat and Anr. (2010 ) 8 SCC 628, 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. 49. In the instant case, what to talk of instances of instigation, there are even no allegations against 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. 13. On meticulous evaluation of the circumstances of the present case, reading of the statement of the complainant and the statement of wife of the deceased recorded under Section 200/ Page 17 of 19 202 of Cr.P.C. and by applying the principle of law enunciated by the Honble Supreme Court on the precise issue, I am convinced that there is no material to proceed against the petitioners for alleged offence punishable under section 306/34 IPC. 14. I have perused the F.I.R, the final form submitted by the I.O after investigation, the statement of the complainant recorded by the Magistrate, so also the complaint made in the form of protest petition. After cumulative analysis of the submission made by both the learned counsel, I am of the view that, the petition deserves merit and this is a fit case to exercise the plenary power of this Court contemplated under section 482 of Cr.P.C. 15. Undoubtedly it’s an unfortunate incident for the family of complainant who has lost his younger brother but at the same time it is iniquitous to use such unfortunate incident as tool to achieve an ulterior motive. It is admitted fact that, the complainant (Udaya Dora) was the sole proprietor of M/s. Dora Construction and if any loss has occurred owing to the non-payment of dues by the AFCONS Infrastructure Limited then the complainant would have Page 18 of 19 been stress out instead his brother who was merely in-charge of the affairs of M/s. Dora Construction and was working as foremen.
Arguments
6. Heard Mr. Milan Kanungo, learned Senior Advocate appearing for the petitioners, Mr. S.R. Raula, learned Addl. Standing Counsel appearing on behalf of the opposite party No.1- State and Mr. Jyotirmaya Sahoo, learned counsel appearing on behalf of the opposite party No.2. 7. Mr. Kanungo, learned Senior Advocate submitted that this is a unique case, which could be treated as an illustration to demonstrate how a false case could be foisted against an innocent at the behest of someone, who might be responsible for the crime. Initially, the F.I.R. was registered by the opposite party No.2 after lapse of seven months of the alleged incident with an ulterior motive. There is no specific overt act attributed to the petitioners to establish any kind of abetment, which led to the suicide of the brother of the opposite party No.2. Even if the entire allegations made by the opposite party No.2 against the petitioners are taken Page 5 of 19 at its face value, no case is made out against the petitioners. Although the incident is unfortunate and heartburning, but the fact remains that the deceased is no way entitled to get any amount from the AFCON Infrastructure Ltd. Rather, he was only a care taker of M/s. Dora Constructions owned by the opposite Party No2. As such, the allegation of ill-treatment and harassment meted out to the deceased is nothing but the motivated allegation and an arm-twisting method employed by the opposite party No.2 to extract the money from the petitioners and to blackmail. 8. Mr. Kanungo, learned Senior Advocate further submitted that in order to attract the offence under Section 306 of the Cr. P.C., the ingredient of Section 107 of the Cr. P.C., which describes the abetment needs to be satisfied. He extensively read out the provisions. Mr. Kanguno has also relied upon the recent Judgment of this Court passed in the case of Dr. Priyank Tapuria vs. State of Orissa & another in CRLMC No.385 of 2023.The relevant Page 6 of 19 paragraphs of the said judgment is hereby reproduced for reference: 8. It has been further argued on behalf of the petitioner that ratio laid down by the Hon'ble Apex Court in the case of Prabhu vs. The State Rep. By Inspector of Police & Anr., SLP (Crl.) Diary No.39981 of 2022 squarely covers the case of the petitioner as the facts in the present case and the facts in the above cited judicial pronouncement are matching except for the fact that allegations in the case dealt by the Hon'ble Supreme Court are much graver than present case. Ld. Senior Counsel has relied on para 9 to 12 of the judgment in the case of Prabhu (supra) to elucidate upon the essential ingredients of offence punishable U/s.306 IPC, which reads as follows:-
Decision
16. In the light of the above discussion, the petition is allowed and the order dated 17.03.2023 taking cognizance of the offence punishable U/s.306 IPC against the petitioners in 1CC No. 03/23 passed by the learned J.M.F.C, Digaphandi and all the consequential proceedings arising there from qua the petitioners are quashed. 17. The CRLMC is accordingly disposed of. S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 29th October, 2024/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 30-Oct-2024 17:38:05 Page 19 of 19