C482/933/2013 of Pawan Kumar Sharma AND ANOTHER Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 933 of 2013 (Under Section 482 Cr.P.C.)

Pawan Kumar Sharma & Anr.

… Applicants

versus

State of Uttarakhand & Anr.

…. Respondents

Mr. D.C.S. Rawat, Advocate for the applicant

Mr. S.S. Adhikari, A.G.A. along with Mr. P.S. Uniyal, Brief Holder for the State

Chronological list of cases referred: i)K.V. Prakash Babu vs. State of Karnataka (2017) 11 SCC 176 ii)Jagdishraj Khatta vs. The State of Himachal Pradesh, Criminal Appeal No.539540 of 2008, decided on 26.04.2019

iii)Amalendu Pal alias Jhantu Vs. State of West Bengal (2010) 1 SCC (Cri.) 896 iv)Madan Mohan Singh Vs. State of Gujarat and Another (2010) 8 SCC 628

JUDGMENT

Hon’ble Lok Pal Singh, J.

By means of the present criminal misc. application under Section 482 Cr.P.C., the applicants seek the following reliefs:

“To quash the summoning order dated 30.07.2013 passed by the Learned Chief Judicial Magistrate, District Dehradun in case no.1749 of 1993 State vs. Pawan Kumar Sharma and others” under Section 304B IPC, relating to P.S. Raipur, District Dehradun summoning the applicants under Section 306 IPC.”

2. This is the third round of litigation before this Court. Earlier, charge-sheet was submitted against five accused, including the applicants, in respect of offence punishable under Section 304-B of IPC, whereagainst, the applicants filed Criminal

Revision no.1145 of 1994 before the Allahabad High Court wherein an interim order was passed, staying the proceedings. However, when the said revision was transferred to this Court, said revision was dismissed as not maintainable and the interim order dated 5.8.1994 got vacated, vide order dated 12.10.2006. Thereafter, criminal misc. application u/s 482 Cr.P.C. was filed by the applicants being C482 No.214 of 2007 before this Court, which was dismissed vide judgment and order dated 18.06.2007. Against the judgment and order dated 18.06.2007, applicant no.1 Pawan Kumar Sharma preferred an appeal before the Hon’ble Apex Court. Hon’ble Apex Court, allowed the appeal and set aside the judgment and order dated 18.06.2007 of this Court, as also the order of summoning, remitting the matter to the trial court to pass fresh order as early as possible. After remand, the Magistrate passed an order afresh. Applicant-husband Pawan Kumar Sharma again approached this Court for quashing of entire proceedings of case no.1749 of 1993, under Sections 304-B, 306 of IPC and under Section 3/4 of Dowry Prohibition Act by way of C482 No.615 of 2008. Coordinate Bench of this Court, vide order dated 19.06.2013, disposed of the C482 application with the following observations:-

“12) While Second petition moved by the application under Section 482 of Cr.P.C. is dismissed in view of parameters laid down by the Hon’ble Supreme Court in R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866; State of Haryana vs. Bhajan Lal, 1992 SCC (CRl.) 4226 and Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, it is left open to the Magistrate concerned to pass fresh

order in terms of the judgment dated December 10, 2007, of the Hon’ble Supreme Court, applying its judicial mind not only on whether on the basis of the allegations made in the complaint petition and the statements made by the complainant and his witnesses, prima facie case has been made out for issuing processes but also must consider as to whether case has been made out in terms of proper provisions of the penal statute for issuance of process for alleged commission of the offences vis-à-vis the allegations made. Since the process(es) are yet to be issued to the accused persons learned Magistrate is requested to apply his mind on the contents of the personal diary as well, which was maintained by the victim during her lifetime, before issuance of process while deciding to proceed against the offenders against whom prima facie case is made out. The learned Magistrate is required to see which of the either offence is, prima facie, made out against the accused-persons – whether under Section 304B of IPC or under Section 306 of IPC?

3. Prosecution story, in brief, is that on 10.11.1992, an FIR was lodged by Anirudh Kumar Sharma, brother of deceased Neetu, stating that his sister married to Pawan Kumar Sharma on 27.06.1990 according to Hindu rites and rituals. After marriage, his sister started living with her husband at Lucknow. It was alleged that from the very beginning, the in-laws of his sister started demanding dowry from her. On account of this, she was subjected to cruelty. When the informant came to know of said fact, he went to meet his sister on 25.4.1991. The informant revealed

the ordeal of his sister to his father. One week thereafter, on 01.05.1991, the victim was brought back to her parental home by her father at Dehradun. The victim was pregnant at that time. The victim was keen to give birth of her child in the house of the brother-in-law of her husband at BHEL, Haridwar. When the relations between the parties became sour on account of demand of dowry, on 01.11.1992, the parents of the deceased went to the door of the applicant for compromise, but they were ill-treated on that date also. On account of this, the sister of the informant committed suicide on 07.11.1992, at about 04:30 PM, by consuming pesticide in her parental home. The victim died on the same day i.e. 07.11.1992 in hospital at Dehradun. It was stated in the FIR that the deceased was in the habit of penning down her emotions and feelings in diary. This diary was handed over to the police by the informant.

4. Learned counsel for the applicants would submit that the applicant no.1 is husband and applicant no.2 is sister-in-law (Jethani) of the deceased. He would further submit that the deceased committed suicide in her parental house. Learned counsel would further submit that the deceased used to pen down her emotions in diary and he would invite attention of the Court to the diary maintained by the deceased and would submit that the last pages of the personal diary of the deceased were missing but no efforts were made by the Investigating Officer or the family members of the deceased to recover the same. It is submitted by learned counsel for the applicants that in her diary the deceased showed resentment towards her parents holding her responsible for breaking her

marriage. Personal diary of the deceased also reflects that there was some suspicion in the mind of the deceased that her husband is indulged in illicit relationships with applicant no.2. Learned counsel would contend that there is not iota of evidence so as to establish the fact that the applicant no.1 was having illicit relationship with applicant no.2. He would further submit that even if the same is proven, in that event also, no case is made out against the applicants u/s 306 of IPC. To buttress his submissions, learned counsel would place reliance on judgment of Hon’ble Apex Court in the case of K.V. Prakash Babu vs. State of Karnataka[1]. The relevant portions are extracted here under:-

“14. Slightly recently in Ghusabhai Raisangbhai Chorasiya V.State of Gujarat (2015) 11 SCC 753, the Court perusing the material on record opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty the explanation (a) to section 498-A of the IPC which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is reproduced below:

“21…True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take different character if the prosecution brings some evidence on record to show that the

accused had conducted in such manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A which includes cruelty to drive woman to commit suicide, would not be attracted.”

15. The concept of mental cruelty depends upon the milieu and the strata from which the persons come from and definitely has an individualistic perception regard being had to one’s endurance and sensitivity. It is difficult to generalize but certainly it can be appreciated in set of established facts. Extra-marital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute criminal offence. There is no denial of the fact that the cruelty need not be physical but mental torture or abnormal behaviour that amounts to cruelty or harassment in given case. It will depend upon the facts of the said case. To explicate, solely because the husband is involved in an extra- marital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.18. Having said that we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be ground for divorce or other reliefs in matrimonial dispute under other enactments. And we so clarify.”

5. I have heard learned counsel for the parties and have gone through the entire material available on record.

6. perusal of impugned summoning order would reveal that the Chief Judicial Magistrate, while passing the impugned summoning order against the applicants to face trial under Section 306 of IPC, has taken into consideration the personal diary of the deceased and on the basis of contents of the diary, has formed an opinion that the matrimonial life of the deceased was full of pain and sufferings as her husband was habitual drunkard. Deceased had also suspicion in her mind about the relations between her husband and sister-in-law (jethani). Chief Judicial Magistrate further observed that the deceased was tortured so much by her in-laws that she committed suicide.

7. At this juncture, it would be apt to reproduce Section 306 of IPC which is extracted hereunder:-

“306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”

8. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The expression 'abetment' has been defined under Section 107 IPC, which reads as under:-

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

Explanation 2. - Whoever, either prior to or at the time of the 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.

9. In recent judgment, in the case of Jagdishraj Khatta vs. The State of Himachal Pradesh[2], Hon’ble Apex Court has observed as under:-

“8. With respect to the former, we are unable to agree with the reasoning of the High Court in relying on the testimonies of the relatives of the deceased. As highlighted by the Trial Court, not only were the allegations in the FIR extremely general in nature, but also the same were never raised by the family of the deceased when they were present at the time of preparation of the inquest report or to the investigating officer. In fact, the allegation of cruelty meted out by the appellant against the deceased appears for the first time at the time of filing the FIR, after delay of nearly one and half days. Further, the prosecution did not even examine any neighbour of the appellant and the deceased to substantiate the allegation that the appellant ill treated the deceased. In fact, and as the High Court also recorded, it appears from the evidence on record that the appellant treated the deceased with love and affection and provided for all her needs. In these circumstances, reliance on the general oral testimonies of the prosecution witnesses, without any supporting evidence, would be misplaced. Further, as the High Court itselfindicated somewhat contradictorily, reliance on the instances testified to by the witnesses would not be appropriate as the said incidents had taken place much before the deceased’s death and could not be treated as conduct which drove the deceased to commit suicide.”

10. Hon’ble Apex Court in the case of Amalendu Pal alias Jhantu Vs. State of West Bengal reported[3]has inter-alia held as under:

"10. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab as follows in paras 12 and 13:"

"12. Abetment involves mental process of instigating person or intentionally aiding that person in doing of thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of thing is required before person can be said to be abetting the commission of offence under Section 306 IPC.

13. In State of W.B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce similarly circumstanced individual in given society to commit suicide, the conscience of the court should not be satisfied for basing finding that the accused charged of abetting the offence of suicide should be found guilty."

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 their 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 case within the purview of Section 306 of IPC there must be 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 offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.”

11. Hon’ble Apex Court in the case of Madan Mohan Singh Vs. State of Gujarat and Another[4]has held as under:

"12. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.”

12. In the present case, contents of the FIR and other material do not reveal that at any point the applicants instigated the deceased to commit suicide, be it for the demand of dowry or because of illicit relationship or for any other reason. There is also no case that the applicants have played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased. There is nothing on record to suggest that the necessary ingredients of Section 107 IPC were found in the present case so as to make out an offence under Section 306 IPC. The case registered against the applicants is without any factual foundation. Prosecution initiated against the applicants would only result in sheer harassment to the applicants without any fruitful result.

13. In view of the above proposition of law as well as analysing the evidence available on record and taking into consideration the over all circumstances of the case also after deep consideration, I am of the considered opinion, no offence is made out against the applicants under Section 306 IPC.

14. Inherent powers under Section 482 of Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Instant case appears to be one such where continuation of criminal proceedings against the applicants would lead to miscarriage of justice.

15. In light of the aforesaid discussion, present criminal misc. application u/s 482 of Cr.P.C. is allowed. Consequently, the impugned summoning order dated 30.07.2013 passed by Chief Judicial Magistrate, District Dehradun as well as the entire proceedings of Criminal Case No.1749 of 1993 State vs. Pawan Kumar Sharma and others, stands quashed.

Rajni

(Lok Pal Singh, J.) 15.03.2019