Anil Kr. Sarkar Vs. the State of West Bengal and ors. - Court Judgment

Excerpt:
- orderpartha sakha datta, j.1. the order dated 28th july, 2008 passed by the learned chief metropolitan magistrate, calcutta in connection with g. r. case no. 2588 of 2000 arising out of hastings p. s. case no. 293 dated 3rd august, 2000 under sections 306/120-b of the indian penal code rejecting the prayer of the petitioner for further investigation into the case is under challenge in this application under section 482 of the cr. p.c. at the instance of the brother of the deceased.2. the opposite party nos. 2-9 are members of a religious order called 'iskcon'. the petitioner's brother was also a member of the said order and a follower of iskcon revival movement. his brother was allegedly and falsely implicated in a criminal case being ballygunje p. s. case no. 74 dated 29th june, 2000.....

Judgment:
ORDER

Partha Sakha Datta, J.

1. The order dated 28th July, 2008 passed by the learned Chief Metropolitan Magistrate, Calcutta in connection with G. R. Case No. 2588 of 2000 arising out of Hastings P. S. Case No. 293 dated 3rd August, 2000 under Sections 306/120-B of the Indian Penal Code rejecting the prayer of the petitioner for further investigation into the case is under challenge in this application under Section 482 of the Cr. P.C. at the instance of the brother of the deceased.

2. The opposite party Nos. 2-9 are members of a religious order called 'ISKCON'. The petitioner's brother was also a member of the said order and a follower of ISKCON Revival Movement. His brother was allegedly and falsely implicated in a criminal case being Ballygunje P. S. case No. 74 dated 29th June, 2000 under Section 376 of the I.P.C. He was arrested on 29th June, 2000 and detained in judicial custody till 2nd August, 2000. On 3rd August, 2000 at about 5.20 a.m., the inmates of the Presidency Correctional Home and the Superintendent of that home found his brother Sureswar Das hanging from the top of an iron bar at Cell No. 32 by his Uttario. However, on 24th July, 2001 the investigating agency submitted a final report praying for initiating a proceeding against the complainant of that criminal case under Section 211 of the I.P.C. on the ground that the allegation was in an untrue case. Prayer was allowed. On 3rd August, 2000 the day on which Sureswar Das committed suicide one Phanibhushan Maiti the Superintendent of the Presidency Correctional Home lodged a written complaint against the O.P. No. 2-9 which was registered as Hastings P. S. case No. 293 dated 3rd August, 2000 under Sections 306/120-B of the I.P.C. In the F. I. R. of this case it has been mentioned that in the personal diary of the deceased there was found one suicidal note wherein it has been revealed that these O.P. Nos. 2-9 were responsible for the death of the deceased, but the investigating agency submitted a final report in this case praying for dropping of the case in favour of the O.P. Nos. 2-9. In the final report the investigating agency observed that there was dispute between two groups of the said ISKCON-one group at Calcutta and another at Mayapur. The petitioner herein filed a complaint under Section 200 of the Cr. P.C. against the opposite parties herein lodging commission of offence under Sections 120B, 211, 376 read with Section 500 of the I.P.C. and the Magistrate after considering said petition of complaint issued process against the alleged victim of rape and others under Sections 211/500, I.P.C. However, being aggrieved with the final report in the case under Sections 306/ 120B of the I.P.C. the petitioner filed a petition under Section 173(8) of the Cr. P.C. praying for further investigation of the case. The learned Magistrate is said to have rejected the petition on 28th July, 2008 without considering the materials on record arbitrarily. It is the contention in the petition that the deceased Sureswar Das left behind him a suicidal note, since recovered by the police, wherein the deceased categorically stated that the O.P. Nos. 2-9 were responsible for the death of Sureswar Das. Since the suicidal note fulfilled the essential ingredients of the offence punishable under Section 306 of the I.P.C. the learned Magistrate neglected to consider the matter.

3. The learned Chief Metropolitan Magistrate by the order dated 28th July, 2008 has recorded that during the investigation the standard handwriting of Sureswar Das was seized and sent to the Questioned Document Bureau, C. I. D., Bhavani Bhavan, along with the diary containing the suicidal note for examination and report. The report of the expert was that the writings of the suicidal note agreed with the standard handwriting of the deceased but the expert wanted more standard handwritings for a definite conclusion. The learned Magistrate further recorded that the investigation revealed that the persons who had been mentioned in the suicidal note as responsible for the death of the deceased belonged to the Mayapur branch of the ISKCON, while the victim Sureswar Das was the member of the Calcutta group of the ISKCON which is a rival group. The victim was mentally depressed as he could not secure bail. Thus observing the Magistrate observed that there was no point in further investigation of the case.

4. The question is whether the rejection of the prayer for further investigation as was made in the protest petition under Section 173(8) of the Cr. P.C. was justified.

5. The learned Magistrate extensively dealt with as to how the victim was found hanging by his neck from the top iron bar of the iron door of Cell No. 32, how post mortem examination was held, what was the observation of the doctor holding post mortem examination, what was the report of the Executive Magistrate who held inquest over the dead body of the deceased and then opined that it was case of death by suicide. These are all irrelevant. Death by suicide is not in dispute. The question is whether there was scope of further investigation into the offence in view of the suicidal note admittedly left by the deceased and which according to the handwriting expert was in the handwriting of the deceased, although the handwriting expert wanted some more specific handwriting for a more definite opinion.

6. That the case under Section 376 of the IPC which was registered against the deceased on the complaint of the alleged victim of the rape case met with a final report is not in dispute. Final report was of no consequence as it was submitted after the deceased committed suicide. But it was observed in the report of the DNA test that the expert opined that the semen detected on the wearing apparel of the victim of the rape case originated from a male person other than the accused deceased and that the deceased was falsely implicated in the case by the victim of the said case by giving false information. Accordingly, prayer was made for prosecution of the victim of the rape case under Section 211 of the IPC. Then on the prayer of the present petitioner process was issued in a complaint case against certain persons including the opposite parties under Sections 211/500 of the IPC. The grounds on which the final report in the case relating to the death of the deceased was submitted are that, (a) that the deceased did not state before the learned SDJM, Alipore when he was produced before him anything against the opposite party Nos. 2-9, (b) that the victim was eager to get bail but became depressed day by day as he did not get bail from any Court whatsoever, (c) the Human Rights Commission which conducted an enquiry did not find any incident of the custodial violence in course of investigation.

7. According to the petitioner, the basis of further investigation is the suicidal note said to have been left behind by the deceased. Handwriting expert's opinion is that prima facie it appeared to be a writing of the deceased. Now a narration as found in the suicidal note is necessary so as to find out whether charge sheet should have been submitted against the O.P. Nos. 2-9 under Section 306 of IPC in view of the allegations in the suicidal note. It is a long history of internal feud between the two groups of ISKCON one at Mayapur and the other in Kolkata. The feud relates to accession to the throne of Guru by the group rival to the deceased. The suicidal note is 8 paged. The first page relates to a confession by the victim of the rape case made to the deceased in the Court room of the lower Court to the effect that she was not knowing who lodged the case of rape. Then it relates to appointment of 11 disciples by the founder Acharya for initiation into the ISKCON order to the devotees. The said document had been suppressed on the death of the founder Acharya for 22 years, as a result of which a protest was raised by other disciples of the founder and a reform movement was initiated by the Kolkata Group. The Kolkata group was led by one Adri Dharan Das. The rival group set fire to a pandal which caused loss of Rs. 1 crore. Further the alleged victim of the rape case was utilised for character assassination of the deceased. Of all the persons the deceased was picked up because he would reside in the ISKCON house at Gurusaday Road and would manage the affairs. It was the opposite parties who utilised the alleged victim of the rape case so as to humiliate him. By incurring expenditure of more than a lac of rupees securing of bail for the deceased was thwarted by the opposite parties and the sole motive was to grab the Kolkata property. He was never abused by police in the police custody; in the jail custody too nobody except one behaved badly. He suffered from high blood sugar and high blood pressure. He was put to mental pressure; he could not sleep and would feel pain in shoulder and head. This was done at the instigation of the opposite parties. While in temple he exclusively devoted himself to devotional activities. The persons who were responsible to kill his devotional activities despite his physique are the said opposite parties and they would be responsible for his death. Swearing in name of the Lord Krishna the deceased concluded that nobody except these opposite parties were responsible for his death.

8. The revisional application challenges the order of the learned Magistrate accepting the final report on the ground that suicidal note left by the deceased clearly pointed out that the Opposite party Nos. 2-9 were responsible for his death and in view of such statement of the deceased in the suicidal note there was left no scope on the part of the prosecuting agency to submit FRT. The petition of complaint does not disclose the areas which remained unexplored or not investigated into. The central point of the petitioner, the brother of the deceased is that the opposite party Nos. 2-9 should have been charge sheeted under Section 306 of the Indian Penal Code since they were held responsible for commission of death of the victim by suicide in the suicidal note. The provision of Section 306 is:

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.

9. In order to find a person guilty of the offence under Section 306 of the IPC one of the ingredients is that the accused should have abetted the commission of suicide. This abetment of the commission of suicide has to be within the meaning of Section 107 of the IPC. To abet one has to instigate a person in doing the thing, or encouraging with one or more other persons in any conspiracy, for doing of that thing if an act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of a thing, or thirdly intentionally aiding by any act or illegal omission in the doing of that thing. A person is said to instigate another to an act when he actively suggests or stimulates him to the act of any means or language, direct, whether it takes the form of express solicitation, or of hints, insinuation or encouragement (See Brijlal v. Prem Chand : AIR 1989 SC 1661). Therefore in common parlance the word 'instigate' means to 'goad' or 'urge', 'forward', or to 'provoke', 'incite', or 'encourage' to do an act. Therefore, instigation entails knowledge of the criminality of an act. As to the second clause there has to be combined effort of two or more persons in the hatching of conspiracy. Particularly, the law has made a distinction between abetment by conspiracy and a criminal conspiracy. In abetment by conspiracy a mere combination of persons or agreement between them is not enough while in criminal conspiracy mere agreement is enough if the agreement is to commit an offence. Therefore, in abetment by conspiracy there must be something more than a mere conspiracy, some act or illegal omission in pursuance of that conspiracy. Under the third clause element of intention to aid by any act or illegal omission must remain present in the doing of a thing. To convict a person for abetment in the commission of offence element of mens rea must remain present. In other words the abettor must intend that the act of abetting is only to see the person dead. In order to substantiate a charge under Section 306 of the IPC it has to be established that the person abetted must commit suicide. Death by commission of suicide must have been the desired object of the abettors; and with that in view they must have instigated, goaded, urged or encouraged the victim in commission of suicide. The instigation may be by provoking or inciting the person committing suicide and this instigation may be gathered by positive acts done by the abettors or by omission in the doing of a thing. Thus the acts or omission committed by the abettors immediately before the commission of suicide are vital. In the instant case investigation did not reveal that save and except the suicidal note wherein the petitioners are held to be responsible for death of the victim there is no note as to how or whether instigation took place at the hands of the accused persons. The said suicidal note is immediately prior to the commission of suicide. It could be expected that the deceased should say as to the role played by the O.P. Nos. 2-9 in the commission of abetment. It is only within the knowledge of the deceased that he could say alone how there has been encouragement or inciting him in the commission of suicide. The act of suicide is the sole decision of the victim who committed suicide. It has not been alleged in the suicidal note as to how the petitioner has incited or goaded to commit suicide. Nor is there any ingredient as to whether there was any conspiracy by and between the O.P. Nos. 2-9 in the act of commission of suicide. There is also no ingredient as to intentionally aiding by any act or illegal omission. In the suicide note not a single act or omission of the O.P. Nos. 2-9 has been alleged. In the suicidal note O.P. Nos. 2-9 have been made responsible for commission of suicide of the victim. Commission of suicide is an unilateral act of the victim. A simple utterance you must die' has been held to be not sufficient to charge prima facie one with the offence of abetting the commission of the suicide. Even that has not been alleged. The mere fact that according to the deceased O.P. Nos. 2-9 are responsible for his commission of suicide is not at all a ground for charging one with abetment. Except the suicidal note there is no material whatsoever to throw light as to how and in what circumstances death of the victim took place. In the suicidal note there has been no allegation of abetment against the O.P. Nos. 2-9 who according to the deceased would be responsible for his death. Not a single iota of material is found in the case diary that can legitimately incline one to hold that there has been commission of act or omission by the O.P. leading to the deceased committing suicide. The mere fact that certain persons have been named in the suicidal note to be responsible for his death is not by itself a ground to fasten one with the charge of abetment. The matter of the fact is that the deceased suffered mental depression because of false lodgment of the FIR against him under Section 376 of the IPC. Falsity of the FIR alleging commission of rape upon a woman against the petitioner's brother does not by itself imply that such a fact was allegedly designed by O.P. Nos. 2-9 with the intention, knowledge and motive that the deceased would commit suicide once he could be remanded to judicial custody. The deceased was arrested on 29th June, 2000, while he committed suicide in jail on 3rd August, 2000. There is no prima facie material that during this period the deceased had meet with the O.P. Nos. 2-9 anywhere and he was goaded to commit suicide. Again falsity of the FIR does not give rise to any reasoning that the false FIR was engineered by the O.P. Nos. 2-9 because no material could be collected to show that it was the O.P. Nos. 2-9 who were instrumental in seeing an FIR registered against the deceased under Section 376 of the IPC. Furthermore, falsity of the FIR again does not give rise to any reasoning that by lodgment of the false FIR the O.P. Nos. 2-9 intend that the deceased who (would) commit suicide. The FIR in the rape case by Basanti Rani does not at all reveal that Basanti was instigated by the O.P. Nos. 2-9 to lodge FIR against the deceased under Section 376 of the IPC. Basanti's statement does not reveal anything to the effect that she was made instrumental in lodging the FIR under Section 376 of the IPC by the O.P. Nos. 2-9 or that the said O.P. Nos. 2-9 hatched a criminal conspiracy the outcome of which was to register a false case of rape against the deceased in order that the deceased might commit suicide. Commission of suicide is an outcome of a state of mind. It may be due to recession of mind. There has been in the suicidal note no narration of any acts or omission by the deceased to show that he was instigated to commit suicide, or intentionally aided by any positive act or illegal omission in the commission of suicide by the victim or that commission of suicide was pursuant to any conspiracy by the O.P. Nos. 2-9. The lengthy suicidal note reflects internal feud between the two groups of the ISKCON, the deceased belonging to one group. Suicidal note of course reflects that deceased formally believed that the O.P. Nos. 2-9 were hostile to him or rather hostile to the group he belonged too.

10. Mr. Bagchi, learned advocate appearing for the petitioners submitted that vital witnesses were not examined. Who were the vital witnesses have not been mentioned in the application. If a certain person has to be charged with the abetment of commission of suicide on the basis of a statement of the deceased that the said person was responsible for his death without mentioning in the least how that person could be held responsible, then the law has to be rewritten. In terms of Section 107 of the IPC it must prima facie appear to hold that the person named in the suicide note to be responsible for commission of suicide has abetted in the act. A month before the deceased committed suicide the deceased was examined by the police in connection with the case under Section 376 of the IPC. It was a somewhat lengthy statement wherein it has not been alleged at all that the case under Section 376 of the IPC was engineered by the O.P. Nos. 2-9. The victim of rape did not say that she was instigated by the other opposite parties to file such a case falsely. The police examined Balai Ghose, Ashok Chandra Sunder, Uttam Mitra, Adri Dharan Das a close associate of the deceased and one of the members of the ISKCON who along with the deceased belonged to the rival camp. None of the witnesses did say that the deceased made any allegations against the O.P. Nos. 2-9 before them.

11. Learned Counsel for the Opposite parties referred to Popular Muthiah v. State represented by Inspector of Police reported in : (2006) 7 SCC 296 in support of his submission that the inherent power of the Court in the matter of directing the investigating agency to re-investigate the case should be sparingly used and making such direction the Court must find from the materials on record as to whether any purpose would be served by such direction. The decision in Hemant Dhasmana v. Central Bureau of Investigation and Anr. reported in : JT 2001 (6) SC 473 : 2001 Cri LJ 4190 has also been cited.

12. In Annakali Datta and Ors. v. State reported in 1990 (II) CHN 38, it was held on the mere fact that the deceased committed suicide after he was badly treated a case of strong suspicion regarding the commission of an offence under Section 306 IPC cannot be said to have been made out. It was observed that if someone actively suggests or goads another to the act by express soliciting, insinuating or encouragement it would certainly amount to abetment of the act. Their Lordship of the Supreme Court in Ramesh Kumar v. State of Chhattisgarh reported in : 2001 (8) J. T. (SC) 599 : 2001 Cri LJ 4724, observed that instigation is to goad, urge forward, provoke, incite, encourage to do an act. In the decision of Ramesh Kumar v. State of Chhattisgarh reported in : 2001 (8) JT (SC) 599 : 2001 Cri LJ 4724, the Supreme Court held that, 'To satisfy the requirement of 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. From the discussion already made by me, I hold as follows: The act or conduct of the accused, even if there may be any, however insulting and abusive those may be, will not by themselves; suffice to constitute abetment of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide. In Sohan Raj Sharma v. State of Haryana reported in : (2009) 1 SCC (Cri) 387 : 2008 Cri LJ 2569, their Lordships referred to Mahendra Singh v. State of Madhya Pradesh reported in : 1995 SCC (Cri) 1157 : 1996 Cri LJ 894, where it was observed that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Here in the instant case no such direct or indirect act of incitement to the commission of suicide is present. Mahendra Singh was further referred to in Kishori Lal v. State of M.P. reported in : (2007) 2 SCC (Cri) 701 : AIR 2007 SC 2457. In Randhir Singh v. State of Punjab reported in 2005 SCC (Cri) 56 : 2004 Cri LJ 4985, it was observed as follows:

More active role which can be described as instigating or aiding the doing of the thing is required before a person can be said to be abetting the commission of offence under Section 306 of the IPC.

In Kishangiri Mangalgiri Goswami v. State of Gujarat reported in : JT 2009 (2) SC 84 : 2009 Cri LJ 1720, Their Lordships of the Supreme Court observed as follows:

In State of West Bengal v. Orilal Jaiswal In : JT 1993 (6) SC 69 : AIR 1994 SC 1418 : 1994 Cri LJ 2104 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 her life by committing suicide. If it transpires to the Court that a 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 a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

13. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abeta 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.

14. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough (See Mahinder Singh v. State of M.P. : 1995 AIR SCW 4570 : 1996 Cri LJ 894

15. The aforesaid aspects were highlighted in Kishori Lal v. State of M.P. : 2007 (10) SCC 797 : AIR 2007 SC 2457, Randhir Singh and Anr. v. State of Punjab 2004 (13) SCC 129 : 2004 Cri LJ 4985 and Sohan Raj Sharma v. State of Haryana reported in : (2009) 1 SCC (Cri) 387 : 2008 Cri LJ 2569. Reference may also be had to Sanju @ Sanjay Singh v. State of Madhya Pradesh reported in : AIR 2002 SC 1998 : 2002 Cri LJ 2796.

16. From the petitioner's side the decision in Didigam Bikshanthi and Anr. v. State of Andhra Pradesh reported in : 2008 (8) Supreme 686 : 2008 Cri LJ 724 has been cited. In the said decision it appears that the suicidal note clearly referred to the acts of the accused persons and the roles played by them. The facts in the case are different. What were the roles played by the O.P. Nos. 2-9 in the commission of suicide by the deceased could not be brought about by investigation.

17. If sequence of events is considered it would appear that the commission of suicide could hardly be actuated upon by alleged abetment. The case under Section 376 IPC was registered on 29th June, 2000. The deceased was arrested on 29th June, 2000, while he committed suicide a little over one month from the date of arrest. The case diary does not reflect that except the alleged victim of the rape case the other opposite parties had ever any occasion to meet the deceased who was in judicial custody during this period. The note of suicide does not bring about any such allegation that the opposite party numbers 2 to 7 and 9 had asked him to commit suicide. Not a single utterance of the opposite parties has been alleged in the note of suicide in order that it can be held that they goaded him to commit suicide. In fact, the note of suicide is a description of how the group which the deceased belonged to was inimical to the group of the opposite party numbers 2 to 7 and 9.

18. In such circumstances, I do not find that the learned Chief Metropolitan Magistrate committed any illegality in accepting the final report for termination of the proceeding.

19. Thus, the application is dismissed. The order of the learned Chief Metropolitan Magistrate dated 28th July, 2008 is affirmed.

20. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.