STATE OF KERALA AND ORS Vs. S.UNNIKRISHNAN NAIR AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 2086 of 2014, Judgment Date: Aug 13, 2015

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2086 OF 2014



State of Kerala and Others                                        Appellants


                                  Versus


S. Unnikrishnan Nair and Others                                  Respondents



                               J U D G M E N T

Dipak Misra, J.

      The seminal question that emerges for consideration in this appeal  is
whether the High Court of Kerala at Ernakulam, is justified in quashing  the
F.I.R. lodged against the respondents  for  the  offences  punishable  under
Sections 182, 194, 195, 195A and 306 of the Indian Penal  Code  in  exercise
of jurisdiction under Section 482 of the Code of Criminal Procedure  by  the
impugned order dated 14th December, 2012.
2.    At the outset, we must  state  that  Mr.  L.  Nageshwar  Rao,  learned
senior counsel appearing for the  State  has  submitted  that  there  is  no
grievance as far as the quashment of the offences punishable under  Sections
182, 194, 195, 195A I.P.C. is concerned.  Therefore, the  central  challenge
pertains to quashing of the offence punishable under Section 306 I.P.C.
3.    The facts in detail need not be stated,  for  the  controversy  really
lies in a narrow compass.  As the factual matrix would unfurl,  one  Sampath
was alleged to have been beaten to death by the investigating  agency,  that
is, the State police, while he was  in  custody.  His  brother,  Murukeshan,
preferred W.P.(C) No.13426 of 2010 and  during  the  pendency  of  the  writ
petition, he filed I.A. No.16944 of 2010.   His  prayer  was  basically  for
issuance of a direction to the Director,  Central  Bureau  of  Investigation
(C.B.I.) to submit a detailed report  regarding  the  investigation  so  far
conducted and production of the entire case diary.  As is manifest,  he  was
not satisfied with the investigation conducted by the State police  and  his
prayer was for better and more rigorous investigation.   Be  it  noted,  the
High Court by an earlier order had directed the  C.B.I.  to  investigate  as
there were certain allegations against the State police.
4.    While dealing with the interlocutory application filed by  Murukeshan,
the brother of Sampath, the High Court has opined thus:
“The re-constitution of the investigation team by inducting one Haridath  as
the Chief Investigating Officer, naturally engendered a fear in the mind  of
the petitioner that  some  attempt  was  afoot  to  deflect  the  course  of
investigation.  It is that fear which has necessitated this application.”

      From the aforesaid, it is clear  as  crystal  that  Haridath  was  the
Chief Investigating Officer.  After the investigating team  was  constituted
by the higher officer, the High Court, as the order  would  further  unveil,
had given  immense  protection  to  Haridath  as  far  as  investigation  is
concerned. We may profitably reproduce the said paragraph hereunder:
“The induction of Haridath at the helm of affairs in  the  investigation  of
Sampath Murder Case need not cause any concern either to the  petitioner  or
to anybody else.  Haridath is believed to be an officer of proven  integrity
and of bold disposition.  He shall, however, submit  a  report  every  three
weeks, under intimation to this Court, to  the  Chief  Judicial  Magistrate,
Ernakulam, regarding the progress of the investigation.  The Chief  Judicial
Magistrate shall also monitor the investigation and if need be call for  the
case diary for his perusal.  The present team of investigation shall not  be
dislocated or changed without the orders of this Court.  Should  any  member
of the investigating team feel that  there  is  any  interference  with  his
freedom either from the C.B.I. or from elsewhere, such member shall be  free
to address this Court through the Registrar General in a sealed cover.”

5.    The aforesaid paragraph makes it quite vivid that the High  Court  had
really  reposed  faith  in  Haridath  and  also  granted  him   freedom   to
investigate and liberty to address the court through the  Registrar  General
in a sealed cover.  The said order was passed on 22nd December, 2010.
6.    The said Haridath was assisted by a team of  officers  which  included
the respondent Nos.1 and  2.   While  the  investigation  was  in  progress,
Haridath committed suicide on 15th March, 2012,  leaving  behind  a  suicide
note.  The said note reads as follows:
“Rajan and Unnikrishnan (CBI TVPM) are responsible for  my  this  situation.
Nobody else has any role in this.  They who compelled me  to  do  everything
and cheated me and put me in deep trouble.  Advocate Seekumar also has  some
role.  CJM Sri Vijayan also put pressure on me.

Nobody else has any role in this.”

      On the basis of the aforesaid suicide note, the criminal law  was  set
in motion and the respondents were arrayed as accused.  The  said  situation
compelled them to invoke the inherent jurisdiction of the High  Court  under
Section 482 of the Code of Criminal Procedure, and eventually, as  has  been
stated earlier, the High Court quashed the same.
7.    It is submitted by Mr. Rao,  learned  senior  counsel  that  the  High
Court has fallen into  gross  error  by  quashing  the  criminal  proceeding
inasmuch as it is a fit case where there should have been a trial.   He  has
taken us through the statement of the wife of the  deceased  and  the  other
witnesses.  Learned senior counsel has also commended us  to  the  authority
in Praveen Pradhan vs. State of Uttaranchal and  Another[1],  to  show  that
the instant case is one where ingredients of  Section  107  of  I.P.C.  have
been met with.
8.    Mr. P.K. Dey, learned counsel  appearing  for  the  C.B.I.,  has  also
supported the submissions of Mr. Rao.
9.    Mr. Prashant Bhushan, learned counsel  appearing  for  the  respondent
Nos.1 and 2, per contra, would contend that the High Court  has  justifiably
quashed the  investigation,  for  Haridath,  the  deceased,  was  holding  a
superior rank and there is nothing  to  suggest  that  the  respondents  had
instigated him or done any activity that  had  left  the  deceased  with  no
option but to commit suicide.  He has placed reliance upon Netai  Dutta  vs.
State of West Bengal[2] and M. Mohan vs. State, Represented  by  the  Deputy
Superintendent of Police[3].
10.          To  appreciate  the  rivalised  submissions  in  the  obtaining
factual matrix, it is necessary to understand the concept  of  abatement  as
enshrined in Section 107 IPC.  The said provision reads as follows:-
“107.  A person abets the doing of a thing, who –

First – Instigates any person to do that thing; or

Secondly – Engages  with  one  or  more  other  person  or  persons  in  any
conspiracy for the doing of that thing, if an act or illegal omission  takes
place in pursuance of that conspiracy, and in order to  the  doing  of  that
thing; or

Thirdly – Intentionally aids, by any act or illegal omission, the  doing  of
that thing.

Explanation 1. – A person who, by wilful  misrepresentation,  or  by  wilful
concealment of a material fact which he is bound  to  disclose,  voluntarily
causes or procures, or attempts to cause or procure, a thing to be done,  is
said to instigate the doing of that thing.

Explanation 2 – Whoever, either prior to or at the time of commission of  an
act, does anything in order to facilitate the commission of  that  act,  and
thereby facilitates the commission thereof, is said  to  aid  the  doing  of
that act.”

11.   The aforesaid provision was interpreted in Kishori  Lal  v.  State  of
M.P[4] by a two-Judge Bench and the discussion therein is to  the  following
effect:-
“Section 107 IPC defines abetment of a thing. The offence of abetment  is  a
separate and distinct offence provided in IPC. A person, abets the doing  of
a thing when (1) he instigates any person to do that thing; or  (2)  engages
with one or more other persons in any  conspiracy  for  the  doing  of  that
thing; or (3) intentionally aids, by act or illegal omission, the  doing  of
that thing. These things are essential to complete abetment as a crime.  The
word “instigate” literally means to provoke, incite, urge on or bring  about
by persuasion  to  do  any  thing.  The  abetment  may  be  by  instigation,
conspiracy or intentional aid, as provided in the three clauses  of  Section
107.  Section  109  provides  that  if  the  act  abetted  is  committed  in
consequence of abetment and there is no  provision  for  the  punishment  of
such abetment, then the offender is  to  be  punished  with  the  punishment
provided for the original  offence.  “Abetted”  in  Section  109  means  the
specific offence abetted. Therefore, the offence for the abetment  of  which
a person is charged with the abetment is normally  linked  with  the  proved
offence.”

12.   In Analendu Pal Alis Jhantu v. State of West  Bengal[5]  dealing  with
expression of abetment the Court observed:-
“The expression “abetment” has been defined under Section 107 IPC  which  we
have already extracted above. A person is said to  abet  the  commission  of
suicide when a person instigates any person to do that thing  as  stated  in
clause Firstly or to do anything as stated in clauses  Secondly  or  Thirdly
of Section 107 IPC. Section 109 IPC provides that  if  the  act  abetted  is
committed pursuant to and in consequence of abetment then  the  offender  is
to be punished with  the  punishment  provided  for  the  original  offence.
Learned counsel for the respondent State, however, clearly stated before  us
that it would be a case where clause Thirdly of Section 107 IPC  only  would
be attracted. According to him, a case of abetment of suicide  is  made  out
as provided for under Section 107 IPC.”

13.   As we find from the narration of facts and  the  material  brought  on
record in the case at hand, it is the suicide note which forms  the  fulcrum
of the allegations  and  for  proper  appreciation  of  the  same,  we  have
reproduced it herein-before.   On  a  plain  reading  of  the  same,  it  is
difficult to hold that there has been any abetment by the respondents.   The
note, except saying that the respondents compelled him to do everything  and
cheated him and put  him  in  deep  trouble,  contains  nothing  else.   The
respondents were inferior in rank and it is surprising  that  such  a  thing
could happen.  That apart, the allegation is really vague.  It also  baffles
reason, for the department had made him the head of the  investigating  team
and the High Court had reposed complete faith in him  and  granted  him  the
liberty to move the court, in such a situation,  there  was  no  warrant  to
feel cheated and to be put in trouble  by  the  officers  belonging  to  the
lower rank. That apart, he has also put the  blame  on  the  Chief  Judicial
Magistrate by stating that he had put pressure on him.   He  has  also  made
the allegation against the Advocate.
14.   In Netai Dutta (supra), a two-Judge  Bench,  while  dealing  with  the
concept of abetment  under  Section  107  I.P.C.  and,  especially,  in  the
context of suicide note, had to say this:
“In the suicide note, except referring to the name of the appellant  at  two
places, there is no reference of any act or incidence whereby the  appellant
herein  is  alleged  to  have  committed  any  wilful  act  or  omission  or
intentionally  aided  or  instigated  the  deceased  Pranab  Kumar  Nag   in
committing the act of suicide. There is  no  case  that  the  appellant  has
played any part or any role in any conspiracy, which  ultimately  instigated
or resulted in the commission of suicide by deceased Pranab Kumar Nag.

Apart from the suicide note, there is no allegation made by the  complainant
that the appellant herein in any  way  was  harassing  his  brother,  Pranab
Kumar Nag. The case registered against the appellant is without any  factual
foundation. The contents of the alleged suicide note do not in any way  make
out the offence against the appellant.  The  prosecution  initiated  against
the appellant would  only  result  in  sheer  harassment  to  the  appellant
without any fruitful result.  In  our  opinion,  the  learned  Single  Judge
seriously erred in holding that the First  Information  Report  against  the
appellant  disclosed  the  elements  of  a  cognizable  offence.  There  was
absolutely no ground to proceed against the appellant herein. We  find  that
this is a fit case where the extraordinary power under Section  482  of  the
Code of  Criminal  Procedure  is  to  be  invoked.  We  quash  the  criminal
proceedings initiated  against  the  appellant  and  accordingly  allow  the
appeal.”

15.   In M. Mohan (supra), while dealing with the abatement, the  Court  has
observed thus:
“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.

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.”

16.   As far  as  Praveen  Pradhan  (supra),  is  concerned,  Mr.  Rao,  has
emphatically relied on it for the purpose that the  Court  had  declined  to
quash the F.I.R. as there was  a  suicide  note.   Mr.  Rao  has  drawn  out
attention to paragraph 10 of the judgment,  wherein  the  suicide  note  has
been reproduced.  The Court  in  the  said  case  has  referred  to  certain
authorities with regard to Section 107 I.P.C. and opined as under:
“In fact, from the above discussion it is apparent that instigation  has  to
be gathered from the circumstances of a particular case. No  straight-jacket
formula can be laid down to find out as to  whether  in  a  particular  case
there has been instigation which force the person to commit  suicide.  In  a
particular case, there may not be direct evidence in regard  to  instigation
which may have direct nexus to suicide.

Therefore,  in  such  a  case,  an  inference  has  to  be  drawn  from  the
circumstances and it is to be  determined  whether  circumstances  had  been
such which in fact had created the situation  that  a  person  felt  totally
frustrated  and  committed  suicide.  More  so,  while   dealing   with   an
application for quashing of the proceedings, a  court  cannot  form  a  firm
opinion, rather a tentative view that would evoke the  presumption  referred
to under Section 228 Cr.P.C.

Thus, the case is required to  be  considered  in  the  light  of  aforesaid
settled legal propositions.

In the instant case, alleged harassment  had  not  been  a  casual  feature,
rather remained a matter of persistent harassment. It is not  a  case  of  a
driver; or a man having  an  illicit  relationship  with  a  married  woman,
knowing that she  also  had  another  paramour;  and  therefore,  cannot  be
compared to the situation of the deceased in the instant  case,  who  was  a
qualified graduate engineer and still  suffered  persistent  harassment  and
humiliation and additionally, also had to endure continuous illegal  demands
made  by  the  appellant,  upon  non-fulfillment  of  which,  he  would   be
mercilessly harassed by the appellant for a prolonged  period  of  time.  He
had also been forced to work  continuously  for  a  long  durations  in  the
factory, vis-à-vis other employees which often even entered to  16-17  hours
at a stretch. Such harassment, coupled with the utterance of  words  to  the
effect, that, “had there been any other person in his place, he  would  have
certainly committed suicide” is what makes the present  case  distinct  from
the aforementioned cases considering the  facts  and  circumstances  of  the
present case, we do not think it is a case which requires  any  interference
by this court as regards  the  impugned  judgment  and  order  of  the  High
Court.”

17.   We have quoted in extenso from  the  said  judgment  and  we  have  no
hesitation in stating that the suicide note  therein  was  quite  different,
and the Court did think it appropriate to quash the proceedings  because  of
the tenor and nature of the  suicide  note.   Thus,  the  said  decision  is
distinguishable regard being had to the factual score exposited therein.
18.   Coming to the case at hand, as we have  stated  earlier,  the  suicide
note really does not state about any continuous conduct of  harassment  and,
in any case, the facts and circumstances are quite  different.   In  such  a
situation, we are disposed to think that the  High  Court  is  justified  in
quashing the proceeding, for it is an accepted position in  law  that  where
no prima facie case is made out against the accused, then the High Court  is
obliged in law to exercise the jurisdiction under Section 482  of  the  Code
and quash the  proceedings.  [See  V.P.  Shrivastava  v.  Indian  Explosives
Limited and Others[6]]
19.   Before parting with the case, we are impelled to say  something.   Mr.
Bhushan, learned counsel appearing for the respondent No. 1 &  2  has  drawn
our attention to a facet of earlier judgment of the High  Court  wherein  it
has been mentioned that at one time the deceased  was  pressurised  by  some
superior officers.  We have independently considered  the  material  brought
on record and arrived at our conclusion.   But,  regard  being  had  to  the
suicide note and other concomitant facts that have  been  unfurled,  we  are
compelled to recapitulate the saying that suicide  reflects  a  “species  of
fear”.  It is a sense of defeat that corrodes the inner  soul  and  destroys
the will power and forces one  to  abandon  one’s  own  responsibility.   To
think of self-annihilation because of something  which  is  disagreeable  or
intolerable or unbearable, especially in a situation where one  is  required
to perform public duty, has to be regarded as a  non-valiant  attitude  that
is scared of the immediate calamity or self-perceived consequence.   We  may
hasten to add that our submission has  nothing  to  do  when  a  case  under
Section 306 IPC is registered in aid of Section 113A of  the  Evidence  Act,
1872.
20.   In the result, we do not perceive any merit  in  the  appeal  and  the
same stands dismissed accordingly.

                                                ..........................J.
                                                              [Dipak Misra]


                                               ...........................J.
                                                         [Prafulla C. Pant]
New Delhi,
August 13, 2015.
-----------------------
[1]     (2012) 9 SCC 734
[2]     (2005) 2 SCC 659
[3]     (2011) 3 SCC 626
[4]    (2007) 10 SCC 797
[5]    (2010) 1 SCC 707
[6]     (2010) 10 SCC 361