C482/436/2014 of Surendra Rautela Vs Nitin Kumar Jatav

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Misc. Application No. 436 of 2014 (Under Section 482 Cr.P.C.)

Surendra Rautela

.…….…… Applicant

versus

Nitin Kumar Jatav

………. Respondent

Mr. H. C. Pathak, Advocate with Mr. B. D. Pandey, Advocate for the applicant. Mr. Jitendra Chaudhary, Advocate for the respondent.

U.C. Dhyani, J. (Oral)

The applicant, by means of present application under Section 482 Cr.P.C., seeks to quash the summoning order dated 01.04.2014 and the proceedings of Criminal Case No. 496 of 2013, u/s 306 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Nitin vs Surendra Rautela pending in the court of Chief Judicial Magistrate, Nainital.

2. Learned counsel for the applicant vehemently argued that no offences under Section 306 IPC and Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the ‘SC/ST Act’) are made out against the applicant, even on

bare reading of the contents of the first information report and the alleged suicide note.

3. In so far as the offence under Section 306 IPC is concerned, it is the contention of learned counsel for the applicant that the abetment to commit suicide is not reflected even if all the allegations made in the suicide-note and the FIR are conceded to be true.

4. Reliance is placed by learned counsel for the applicant upon decision of the Hon’ble Apex Court in M. Mohan vs. State with Velmurugan & another vs. State 2011 AIR SCW 1601, wherein the Hon’ble Apex Court observed as below:

“45. Abetment involves mental process of instigating person or intentionally aiding person in doing of thing. Without positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict person under section 306 IPC there has to be 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 position that he/she committed suicide.”

5. Learned counsel for the applicant also placed reliance upon Mahendra Singh & another vs. State of M.P. 1995 Supp (3) SCC 731, Netai Dutta vs. State of W.B. (2005) 2 SCC 659 and S. S. Chhena vs. Vijay Kumar Mahajan & another (2011) 2 SCC (Cri) 465. The case Hon’ble Apex Court held in Mahendra Singh’s

(supra), Netai Dutta’s case (supra) and Sohan Raj Shrama vs. State of Haryana 2008 AIR SCW 3202 that mere cruel or insulting behaviour cannot be taken to be an act of abetting suicide and the ingredients of Section 306 IPC, in such cases, are not made out. The Hon’ble Apex Court in Kishori Lal vs. State of M.P. (2007) 3 SCC (Cri) 701 held that mere torture by the accused and subsequent commission of suicide by the victim would not amount to an abetment or instigation to commit suicide.

6. In V. P. Shrivastava vs. Indian Explosives Limited & others (2010) 10 SCC 361, the Hon’ble Apex Court 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 Cr.P.C. to quash the complaint. In Madan Mohan Singh vs. State of Gujarat & another (2010) 8 SCC 628, the Hon’ble Apex Court quashed the conviction under Section 306 IPC on the ground that the allegations were irrelevant and baseless.

7. In the suicide-note and the FIR, there is no reference of any act or incidence whereby the applicant is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased in committing the act of suicide. There is no case that the applicant has played any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by the deceased. The contents of the alleged suicide-note and the

FIR do not, in any way, make out the offence under Section 306 IPC against the applicant.

8. On careful perusal of the material on record and the law laid down by the Hon’ble Apex Court, this Court can safely arrive at conclusion that the applicant is not remotely connected with the offence under Section 306 IPC.

9. So far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, learned counsel for the applicant submitted that even if the contents of the suicide-note and FIR be conceded to be true, no ingredients of Section 3(1)(x) of the SC/ST Act are prima facie made out against the applicant, in the sense that informant nowhere said that the accused himself was not the member of SC/ST and he used those words intentionally in order to humiliate him (victim) in place within the public view knowing it that he (victim) belonged to community of Scheduled Castes or Scheduled Tribes, as was held by the Hon’ble Supreme Court in Gorige Pentaiah vs. State of Andhra Pradesh and others, (2008) 12 SCC 531.

10. No prima facie case under Section 3(1)(x) of the SC/ST Act is made out against him (applicant), in view of Gorige Pentaiah’s case (supra), wherein, in paragraph no. 6, it was observed by Hon’ble Apex Court as under:

“In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.5.2004, the appellant abused

them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not member of the Scheduled Caste or Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not member of the Scheduled Caste or Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.”

11. Prima facie, the offence under Section 3 (1) X of the SC/ST Act is also not made out in view of Gorige Pentaiah’s ruling.

12. In view of the aforesaid discussion, this Court is of the opinion that even bare reading of the FIR and the suicide-note does not constitute any offence against the present accused-applicant. When factual foundation of any offence is not laid against the accused-applicant, then this Court should intervene in exercise of it’s inherent jurisdiction to prevent the abuse of process of the court in view of the decisions of Hon’ble Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC

330 and Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCC (Crl) 986.

14. Application under Section 482 Cr.P.C. is accordingly allowed. The impugned summoning order and the proceedings of criminal case no. 496 of 2013, u/s 306 of IPC and 3 (1) X SC/ ST Act, “Nitin vs Surendra Rautela” pending in the Court of Chief Judicial Magistrate, Nainital are hereby quashed.

Balwant

(U.C.Dhyani,J.)

10.04.2017