ORDER
B.P. Das, J.
1. The petitioner, who is the Deputy Superintendent of Police, Central Bureau of Investigation, Bhubaneswar, has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'Cr. P.C.') with a prayer to quash the order dated 28-6-1997 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar, in G.R. Case No. 928 of 1997 taking cognizance against him of the offences punishable under Sections 341, 343 and 306 of the Indian Penal Code ('IPC' In short) as well as the entire criminal proceeding.
2. The brief facts leading to this application, as reveal from the petition as well as the records of the Court below, are thus : --
On 24-7-1993 certain persons belonging to a particular political party had forcibly taken away one Shyamapada Rout, a trade union leader belong to a political group, namely, Socialist Unit Centre of India, for which an FIR was lodged at the Tamka Police Station and the same was registered as Tamka Police Station case No. 50(10) of 1993 under Sections. 147, 148, 149, 368, 302, 325, 506, IPC read with Section 27 of the Arms Act. Investigation of the case was subsequently taken over by the Crime Branch of the State Police. On the basis of an application made by the wife of the said Shyamapada Rout, the Supreme Court by order dated 19-10-1994 directed the Central Bureau of Investigation ('C.B.I.' in short) to take up investigation of the aforesaid case. Accordingly, the CBI registered the FIR in RC No. 67(S) of 1994 corresponding to SPE No. 44/1994 and took up the investigation. The petitioner, who was the Deputy Superintendent of Police attached to the CBI, Bhubaneswar, was appointed as the Investigating Officer to investigate into the aforesaid case. During the course of investigation, the petitioner as the I.O. interrogated several person including one Gopal Behera of Octopol village under Tamka P.S. as a witness. According to the petitioner, Gopal Behera was a star witness for the prosecution. Notice under Section 160, Cr. P.C. was accordingly issued to said Gopal Behera to appear before the I.O. on 2-1-1995 in the office of the CBI, Bhubaneswar, for the purpose of investigation and pursuant to the aforesaid notice, Gopal Behera appeared before the I.O. on 2-1-1995 in the CBI office at Bhubaneswar and his statement was recorded by the petitioner. After recording the statement, the I.O. asked Gopal Behera to come again on 5-1-1995 for his further examination. On 5-1-1995 Gopal Behera appeared before the I.O. and his statement was recorded by the I.O. On the same day, the I.O. again instructed Gopal Behera to come to CBI Office 3/4 days after with a view to decide whether his statement would be recorded under Section 164, Cr. P.C. The petitioner's further case is that Gopal Behera came to the CBI Office at about 4.30 p.m. on 8-1-1995 on which day the petitioner was away from his headquarters for which the witness (Gopal Behera) waited for the arrival of the petitioner at the reception counter of the C.B.I. office at Bhubaneswar. The petitioner returned to the headquarters at about 6 p.m. on that day and on coming to know the presence of Gopal Behera, he came to the CBI office and had a discussion with Gopal Behera for about 45 minutes. Thereafter the petitioner returned to his quarters at about 7-30 p.m. As it was heavily raining, Gopal Behera could not go outside the CBI office and stayed in that office, where two Constables and one APR guard were on duty on rotation at every two hours. In the meantime, Gopal Behera in order to attend the call of nature enquired from the CBI constable about the location of the toilet and on being shown he moved towards the toilet. After some time when the Constable on duty went round the building to check up the rooms and property, he found that Gopal Behera was hanging inside Room No. 11, which was kept open for repair. The body was immediately brought down and information was sent to the poetitioner, who immediately rushed to the spot and reported the matter to the Superintendent of Police, C.B.I. On the same day, information was also given to the Capital Police Station, which registered the same as U.D. Case No. 5 dated 9-1-1995 and took up investigation. Inquest was made on 9-1-1995 and post-mortem of the dead body of Gopal Behera was conducted twice one by the Capital Govt. Hospital and the other by the FMT Department of the SCB Medical College Hospital. According to the petitioner, there was no sign of any external or internal injury on the body of the deceased Gopal Behera as per the post-mortem reports. On receipt of information about the death of Gopal Behera, Kalpana Behera, the wife of the deceased Gopal Behera, came to Bhubaneswar and lodged an information at the Capital Police Station alleging therein that her husband had been killed. The aforesaid information was entered in the Station Diary as S.D. No. 390 dated 10-1-1995. While the matter stood thus, the wife of Gopal Behera sent a Fax message to the Supreme Court and the same was registered as W.P. (Crl) No. 176 of 1995. In the meanwhile, the State Govt. directed for a judicial enquiry into the death of Gopal Behera and the learned District Judge, Cuttack, was entrusted to enquiry Into the matter. By an order passed on 15-3-1996 in the aforesaid writ petition, the Supreme Court directed the District Judge, Cuttack, to complete the enquiry by June, 1996 and to submit a report of such enquiry to it. Accordingly, the District Judge conducted the enquiry and submitted his report on 28-6-1996 with the following findings: --
(a) The death of Gopal Behera inside the CBI building was not homicidal but suicidal.
(b) The deceased Gopal Behera was brought from his village by the CBI authorities in the night of 29-12-1994 under duress and kept in detention in the CBI premises Bhubaneswar till his death.
(c) No clear cut finding is practicable, on the basis of the materials collected in regard to the cause of suicide.
(d) The deceased having been kept in detention from the night of 29-12-1994 till his death against the mandate under Article 22 of the Constitution the CBI cannot but be held responsible for his death.
(e) Even if the deceased voluntarily came to the CBI Office on 8-1-96 as a witness on the earlier direction of the Investigating Officer, still the CBI is responsible for the negligence of the I.O. and the 2 Sentries in not taking care of the safety of the deceased inside the CBI building and thus preventing him from committing suicide.
(f) The Government is liable to pay compensation to the dependents of the deceased, i.e. widow and 5 children.
Apart from the aforesaid enquiry conducted by the District Judge, the National Human Rights Commission had also conducted an enquiry and disposed of the proceeding on 10-6-1996 with a direction to the CBI establishment to compensate Gopal Behera's death and recommended for payment of Rs. 1 lakh to the next kins of the said Gopal Behera.
On the basis of the findings arrived at by the learned District Judge and on his own information, the Inspector-iri-charge of the Capital police station drew up an FIR on 25-3-1997 and registered the same as Capital P.S. Case No. 169 dated 25-3-1997 corresponding to G.R. Case No. 928 of 1997 on the file of the learned S.D.J.M., Bhubaneswar. It was alleged in the FIR that during investigation into R.C. no. 67(S) of 994, i.e., the murder of Shyamapada Rout, the present petitioner as the I.O. brought Gopal Behera from his house and confined him wrongfully in the CBI office building to extract information. It was further alleged that the two CBI. Constables, who were on sentry duty, and the petitioner committed the offence under Sections. 343/348/34, IPC. When the matter stood thus, the CID, (Crime Branch), Orissa, took over the investigation of the case and on completion- of the investigation, submitted charge-sheet on 28-6-1997 alleging therein that the petitioner had committed the offences under Sections 341, 343, 306, IPC. On the basis of the charge-sheet, the leaned S.D.J.M. by order dated 28-6-1997 took cognizance of the offences under Sections 341, 343 and 306, IPC. The petitioner has challenged the aforesaid order taking cognizance against him in the present application.
3. The petitioner submits that in response to the notice issued under Section 160, Cr. P.C., the witness-Gopal Behera appeared before him in the CBI office on 2-1-1995 and on 5-1-1995 and his statement was recorded. It is stated that on 5-1-1995 the witness was asked to come 3-4 days after and accordingly on 8-1-1995 the witness came to the CBI office at Bhubaneswar on his own. According to the petitioner, the question of wrongful restraint and wrongful confinement for more than three days absolutely does not arise in view of the fact that the deceased-Gopal Behera first appeared on 2-1-1995 and then on 5-1-1995 on his own and he was never kept in the office of the CBI for more than three days in order to attract the criminal liability of Section 343, IPC.
Perusal of the statements of Kalpana Behera, the widow of Gopal Behera and Gopabandhu Pati, the Inspector of CBI attached to the office of the Superintendent of Police, CBI, Bhubaneswar, belies the claim of the petitioner that Gopal Behera came to the CBI office on his own on receipt of the notice issued under Section 160, Cr. P.C. Therefore, without expressing any opinion on the merits of the case, I am not inclined to quash the cognizance so taken under Sections 341 and 343, IPC.
4. So far as the offence under Section 306, IPC is concerned, it is profitable to extract here under Section 306, IPC:--
Abetment of suicide -- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Abetment has been defined in Section 107, IPC which reads as follows :--
Abetment of a thing -- 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 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.
In the instant case, at the outset without going into evidence, I have to examine if the story of FIR is accepted in its entirety, whether a prima facie case has been made out to fasten the petitioner with the offence under Section 306, IPC.
Admittedly, the petitioner was the I.O. and the deceased-Gopal Behera was one of the Witnesses for the prosecution. From the statements of Gopal Behera so recorded by the petitioner during the course of investigation in R.C. No. 67(s) of 1994, which have been filed as Annexure-5 series, it appears that the said Gopal Behera was a star witness for the prosecution and the prosecution being interested to bring home the charges and to bring the culprits to book, the I.O. can never indulge in such an act which may ultimately lead to the suicide of the said witness who is a material witness for the prosecution.
The FIR which has been drawn suo motu by the IIC of Capital P.S. indicates that in view of the judicial enquiry conducted by the learned District Judge, Cuttack, no further action was taken in U.D. Case No. 5 dated 9-1-1995 so registered earlier and it was concluded that Gopal Behera was brought from his village under duress on 29-12-1994 and was kept in detention till the time of his death for which it was initially held as an allegation of commission of offences under Sections 343, 348/34, IPC by the petitioner and other officers of the CBI. Nothing has been mentioned in the FIR regarding the commission of an offence under Section 306, IPC. Ultimately, when the final form was submitted by the CID, Crime Branch, it was indicated in the said final form that apart from the offences under Sections 341 and 343, IPC the petitioner is alleged to have committed that offence under Section 306. On a bare perusal of the FIR and the charge-sheet arid accepting all the documents in their entirety, there is nothing except the allegation recorded the column meant for narration of brief facts in the charge sheet that Gopal Behera was detained in the CBI custody from 29-12-1994 till 8-1-1995 inside the CBI Office, Bhubaneswar, causing severe mental harassment to him and others and due to such harassment and mental torture, Gopal Behera committed suicide in the night of 8-1-1995.
In a case under Section 306, IPC prosecution is to establish that abetment is made with a view to force the victim to commit suicide. This particular aspect is totally absent in the present case. There is no allegation of any harassment in order to force the victim to commit suicide. There may be some compulsion or coercion on the part of the I.O. in order to obtain statement but there is nothing to indicate that the witness was forced to commit suicide. Even if the case of the prosecution is taken in its entirety without adding or subtracting, there is nothing on record which shall fulfil the ingredients of Section 107, IPC in order to fasten the petitioner with the criminal liability under Section 306, IPC.
In this connection, it is profitable to refer to the decision in Mahendra Singh v. State of M.P. (1996) 10 OCR 553 : 1996 Cri LJ 894, wherein the Apex Court observed as follows :-.Abetment has been defined in Section 107, IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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 pur-suance 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....
Therefore, this presupposes that a person must have the knowledge of the illegal act or criminal act and he must have done something by an act or omission, incited the person doing the crime. In the instant case, the deceased was in the CBI office because he was a witness for the prosecution. So, an investigator suo motu is to see that he finds out the truth from the witness in order to bring the culprit to book. It cannot be said to have either known the intention of the deceased and had done something to incite him in the commission of the illegal act. There is also no material as regards the conspiracy in order to facilitate the act or commission of suicide. In the case of Krushnahari Debnath v. State (1995) 1 Orissa LR 658, this Court held :-.The offence of 'abetment' must naturally conform to the definition of that term as given in Section 107, IPC that is to day, there must be instigation, co-operation or intentional assistance given to the would -- be suicide. It is not necessary, nor indeed is it a part of the definition, that the suicide should have been committed in consequence of the abetment. But in order to render a person liable as an abettor, it is of course necessary, as indeed it is in the case of any other offence, that the abettor should be something more than a mute spectator-spectator haud particeps....
Looking into the charge-sheet so submitted and keeping in view the principles of law so settled on the point, I am of the opinion that no case has been made out against the petitioner for the offence punishable under Section 306, IPC. Accordingly, the cognizance taken against the petitioner under Section 306, IPC is quashed. The trial Court shall now proceed with the trial for the other offences.
The criminal misc. case is partly allowed. The LCR be sent back immediately.