SCR.A/1176/2004 1/75 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1176 of 2004 with SPECIAL CRIMINAL APPLICATION No. 1225 of 2004 with SPECIAL CRIMINAL APPLICATION No. 1292 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ============================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================ A.K.CHAUDHARY & 2 - Applicant(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ============================================================ Appearance : MR K.T.S.TULSI, Sr.Counsel with Mr.Nanavati, Sr.Counsel for NANAVATI & NANAVATI for Petitioner No(s).: 1,2. SCR.A/1176/2004 2/75 JUDGMENT MR NITIN M AMIN for Petitioner in Spl. Cr. Appln. No.1292/2004 MR KOGJE, Ld. APP for Respondent No(s).: 1. RULE SERVED for Respondent No(s).: 2, 3,5. MR PRAKASH K JANI for Respondent No(s).: 4. MR BHAIRAVIA for Resp. (Ori. Complainant) in Spl. Cr. Appln. No.1292/2004 ================================================================== CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 09/09/2005 COMMON CAV JUDGMENT 1.Life is dear to everybody and death is painful to one and all. Should sentiments prevail or discipline for the administration of any institution ? Can sentiments be allowed to be enforced over rule of law ? Can the action or inaction or propriety of action or inaction to discharge legal obligation be said as an aid or instigation or abetment to commit suicide ? The aforesaid are the aspects which directly or indirectly arise for the consideration of this Court in the present group of petitions. 2.The short facts of the case are as under: (i) There is no dispute on the following aspects: SCR.A/1176/2004 3/75 JUDGMENT a)Life Insurance Corporation of India (hereinafter referred to as “LIC” for short) is a statutory body governed by the provisions of LIC Act and its employees are governed by the Regulations framed by LIC in exercise of the statutory power under LIC Act. b)The deceased Dineshbhai Ganpatbhai Parmar was an employee of LIC holding of the cadre of Assistant Executive Engineer. c)The petitioners of Special Criminal Application No.1176/2004, Shri A.K.Chaudhari and Shri A.K. Shukla and the petitioners of Special Criminal Application No.1225/2004, Shri S. Roy Chaudhary, Shri R.K. Mishra, Shri T.K. Banerjee, and Shri P.P. Upadhyay were and are the Officers of LIC, In-charge of their concerned Departments, holding different capacities, which are as under: 1.Shri S. Roy Chowdhury, Executive Director (Personnel) – Petitioner No.1 in Special Criminal Application No.1225 of 2004. 2.Shri A.K. Shukla, now Executive Director (Pr SCR.A/1176/2004 4/75 JUDGMENT & C C) at the relevant time was working Chief (Personnel) – Petitioner No.2 in Special Criminal Application No.1176 of 2004. 3.Shri R.K. Mishra, now in Central Office as Superintending Engineer, the then Executive Engineer, Ahmedabad Divisional Office – Petitioner No.2 in Special Criminal Application No.1225/2004. 4.Shri T.K.Banerjee, Zonal Manager, Western Zone, Mumbai, now Member, IRDA (Insurance Regulatory and Development Authority), Hyderabad – Petitioner No.3 in Special Criminal Application No.1225 of 2004 5.Shri A.K.Chaudhary, the then Senior Divisional Manager, Rajkot, now on deputation in the Office of Ombudsman, at Ahmedabad – Petitioner No.1 in Special Criminal Application No.1176 of 2004. 6.Shri P.B.Upadhyay, now Faulty Member, Divisional Training Centre, Rajkot, the then Manager (I.T.) - Petitioner No.4 in Special SCR.A/1176/2004 5/75 JUDGMENT Criminal Application No.1225/2004. All shall be referred to hereinafter as “the specified authority/specified officer” for the sake of convenience. (d)The petitioner of Special Criminal Application No.1292 of 2004 was the contractor who was granted contract by LIC for construction of certain works of LIC with one M/s.Vijay Construction. (e)One of the contractors, who is the petitioner of Special Criminal Application No.1292 of 2004 is also Dalit. The deceased D.G.Parmar (hereinafter referred to as “the deceased”) was also Dalit. (f)In the year 2000 contracts were granted by the deceased for repair of the official quarters of L.I.C., at Rajkot as an Officer of LIC in capacity as Assistant Executive Engineer to the petitioner of Special Criminal Application No.1292/2004 and one another contractor M/s.Vijay Construction (hereinafter referred to as “another contractor”). (g)There was complaint by petitioners of Special Criminal Application No.1292 of 2004 against SCR.A/1176/2004 6/75 JUDGMENT deceased, lodged with Anti Corruption Bureau (ACB) for demanding bribe and a trap was organized by ACB, which was not successful and had failed, in the month of August, 2002. There were complaints lodged by the petitioners of Special Criminal Application No.1292 of 2004 and other contractor to the Authority of LIC, by making allegations against the deceased for demand of bribe and on the basis of such complaint the Specified Authority of LIC had passed the order on 24.9.2002 for suspending the deceased. (h)There were no actions for about two years by the specified officers, though the deceased continued to make representations against the action of suspension. (i)In April-June, 2004 explanation was called by LIC from the deceased in connection with the allegations made by the contractor against the deceased. (j)On 14.7.2004, deceased replied to the Authority by submitting his explanation. SCR.A/1176/2004 7/75 JUDGMENT (k) The Vigilance Department of LIC also held an inquiry and had exonerated the deceased in the month of November, 2003. However, Specified Authority of LIC issued charge-sheet to the deceased on 6.10.2004. (l) On 19.10.2004, the deceased made a demand for supply of certain documents. (m)In the meantime, the National Commission for Scheduled Caste and Scheduled Tribes recommended for taking appropriate action for ventilating the grievance of the deceased. (n)As per the specified officers LIC as there were serious allegations of demanding bribe, the action is taken by the Specified Authority in discharge of official duty provided under LIC Act read with Staff Regulations framed thereunder. Whereas as per the deceased, the action is taken by arranging conspiracy of the Bengali Officers in collusion with the aforesaid two contractors. (o)On 23.10.2004 in the suicide note the ending words of the deceased were (English Translation): SCR.A/1176/2004 8/75 JUDGMENT “What a distress in man's life. There is the only safety method to trap and make a man helpless by playing fault and tricks and there is nobody to ask them. They were misusing the powers to spoil the lives of others, has humanity died ? There is one aforesaid inquiry panel to damage my career/life, by collusion of each other a wrong shape is given to the matter and the same is made colourful and I am tortured mentally for two years and I am made helpless for which the following persons are fully responsible. Hence, they shall be held deeply responsible in the eyes of law and shall be punished so that they may think oblique otherwise before doing such things to others: (i)Shri Mavji Dahyabhai Vania -Rajkot (ii)Shri K.C. Ajari – Rajkot (iii)Shri A.K.Chaudhary – Ahmedabad (Bengali) (iv)Shri A.K.Shukla – Mumbai (v)Shri P.B. Upadhyay – Rajkot (vi)Shri R.K. Mishra – Mumbai (Bengali) SCR.A/1176/2004 9/75 JUDGMENT (vii)Shri Roy Chowdhury – Executive Director (Personnel) – Mumbai (Bengali) Now, we are fed up with our life and we have no option other than leaving the world. The charmless life has become dissolved, dried, without any interest and isolated and, therefore, helplessly we have to commit suicide. This distress and charmless lives will lie peacefully. Whatever our rightful dues are there – financial and others shall be received by my father/brothers. – Good Bye” (p) The deceased committed suicide with his wife and two daughters. His wife Madhuben B Parmar, daughter Payal D. Kapadia and Nisha D. Kapadia by consuming poison. For two days as the house remained closed, it was inquired and dead bodies were found of the deceased and the aforesaid three persons in the house. (q)On 27.10.2004 FIR was registered vide C.R. SCR.A/1176/2004 10/75 JUDGMENT No.498/2004 of Sabarmati Police Station, Ahemdabad by showing the occurrence of the incidents of two years before on 26.10.2004 and from 23.10.2004 to 27.10.2004, for the offences under Section 306, 114 of IPC read with Section 3, 1, 6,8, 10 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Atrocities Act” for short) and the complainant is the brother of the deceased, Shri Kantibhai Sanjibhai Parmar. 3. In light of the aforesaid undisputed factual scenario, the matter deserves to be examined. 4. Mr.Tulsi, learned Senior Counsel appearing with Mr.Nanavati, learned Counsel for the petitioners submitted that even if the complaint is accepted on its face value, it does not make out a case for commission of the alleged offences namely; abetment for suicide and the alleged offence under the Atrocities Act and the submission of the learned Counsel appearing for the petitioners is that the action was taken of suspending the deceased, of issuing charge-sheet etc., etc., in SCR.A/1176/2004 11/75 JUDGMENT discharge of the official duty or, in any case, in purported exercise of the official duty. It was also submitted that had the petitioners in capacity as the Specified Officers of LIC not taken action in such a serious matter, where the allegations were for demand of bribe in a complaint made by the contractor, there would have been ex-facie dereliction of the duty and if the actions were not taken, the petitioners themselves could have been subjected to the departmental proceedings for dereliction of the duty. He also submitted that in none of the correspondences made by the deceased with LIC there is any allegation of so-called Bengali conspiracy and he alternatively submitted that even if there is such allegation, the same is the self-creation of the deceased himself on imagination and, in any case, even if such allegations stand, the same would not result into commission of offence as such allegations, at the most, can be said as harassment or mental torture or at best, cruelty which even otherwise cannot be said as abetment or incitement to commit suicide. He also submitted that as the deceased was suspended in the year 2002, he had enough time to think and not only SCR.A/1176/2004 12/75 JUDGMENT that but even after issuance of the charge-sheet on 6.10.2004, the deceased had demanded documents on 19.10.2004 and thereafter also there was sufficient time to think consciously and the alleged incident had happened on 23.10.2004 and, therefore, it cannot be said as abetment to suicide. The learned Counsel also submitted that even if the person is a Dalit, he is also not immune to law and, therefore, in any case, when the action is taken in discharge of the official duties or, in any case, in purported exercise of the official duty, it cannot be said that any alleged offence is committed under the Atrocities Act. The learned Counsel appearing for the petitioners has relied upon various decision to support his contention, which shall be referred to hereinafter to the extent they are found relevant, for the present case. 5.Mr.Tulsi, learned Sr. Counsel has also alternatively submitted that there is no jurisdiction with the police to investigate into the complaint as no offence is made out and he, therefore, submitted that merely because FIR is registered of a cognizable case is no ground for SCR.A/1176/2004 13/75 JUDGMENT the police to proceed with the investigation by effecting arrest etc., unless prima facie satisfaction is arrived at that cognizable offence is committed and, therefore, he submitted that as no offence is made out or, in any case, as there is no authority with the police to investigate into the present complaint, this Court may exercise the power for quashing of the complaint. He also submitted that the death, in any case, is un-natural death and the police could have inquired into the case of un-natural death. If there is sufficient material for abetment of suicide, then only the FIR can be registered under Section 306, but merely because there is a suicidal note in the present case, it is not sufficient to make out a case for commission of offence under Section 306 of the IPC for abetment of suicide or for the alleged offence under the Atrocities act. 6. It was further submitted by Mr.Tulsi that as per the exceptions provided under the Indian Penal Code under Chapter IV, proceedings with Section 76 onwards, nothing is an offence which is done by the person under a mistaken belief of fact or law SCR.A/1176/2004 14/75 JUDGMENT that he is bound by law to do it and, therefore, if general exceptions are considered, it is clear that no offence is committed by any of the accused under Section 306 of IPC or under the provisions of Atrocities Act, as alleged. 7.Mr.Amin, learned Counsel appearing for the petitioner contractor submitted that as the demand of bribe was made by the deceased, his client had approached the ACB, but somehow, as the information was leaked, the trap failed. He submitted that the petitioner had no option but to complain to the higher Officer of the LIC for the demand of illegal gratification made by the deceased. He submitted that merely because the complaint is filed by the petitioner against the alleged misconduct of the deceased, it cannot be said that there is any abetment to suicide. He, therefore, submitted that the petitioner is also a Dalit and, therefore, the charge under the Atrocities Act cannot be maintained against the petitioner. Mr.Amin for supporting his contention has also relied upon certain decisions to which the reference shall be made to the extent they are found relevant for the present case. SCR.A/1176/2004 15/75 JUDGMENT 8. On behalf of the State and the Original Complainant, Mr.Kogje, learned APP, Mr.P.K.Jani, learned Counsel and Mr.Bairavia, learned Counsel appearing for the complainant in the respective petitions, inter alia, submitted that there is prima facie material for showing commission of offence for abetment to suicide and also for the alleged offence under Atrocities Act. It has been submitted on behalf of the respondents that in normal circumstances, as a responsible Officer of LIC, the suspension order could have been revoked and the representation made by the deceased could have been responded to by taking appropriate action. However, all omission were with the deliberate purpose of harassing the deceased who was Dalit and it has been submitted that the action of suspending and other departmental proceedings were coupled with the malice and, therefore, can be said as abetment to suicide. It was also submitted that the Atrocities act is enacted with a view to provide additional safe- guard to Dalit and if the purposive interpretation is made of the relevant provisions of Atrocities Act or of the allegations made in the complaint, it does make out a case prima facie for commission SCR.A/1176/2004 16/75 JUDGMENT of offence under the Atrocities Act. 9. It was also submitted on behalf of the State and original complainant that the matter is still at the investigation stage and the police has yet to investigate into the complaint. It was submitted on behalf of the respondents that when the FIR is registered in connection with the cognizable offence, it is obligatory on the part of the police to investigate and such investigation may also result into dereliction of the statutory duties by the accused petitioners. It was submitted on behalf of the respondents that the investigation by the police in connection with the present complaint cannot be said as without jurisdiction. It was submitted that the present complaint may not be quashed and all petitions deserve to be dismissed. 10. The learned APP, Mr.Kogje had additionally submitted that in the investigation made up till now by the police there are statements of the witnesses showing that there was harassment or bias by some of the Officers of LIC, who are petitioners against the deceased since he was SCR.A/1176/2004 17/75 JUDGMENT Dalit. He submitted that as the investigation is yet to be made further, the matter cannot be concluded at this stage on the basis that there is no offence committed by the accused for abetment of suicide or alleged offence under the Atrocities act. The learned APP submitted that considering the allegations made in the complaint it cannot be said that there is no prima facie case for investigation by police and, therefore, it was submitted that the complaint may not be quashed by this Court at this stage. 11. Mr.Jani, learned Counsel appearing for the original complainant – respondent herein also contended that as per Section 105 of the Evidence Act, the burden of proving that there is a case within the exception as provided under IPC falls upon the accused and in absence thereof the Court shall presume the absence of such situation of exceptions, and therefore such defence cannot be considered at the stage of investigation or quashing of the complaint under Section 482 of Cr.P.C. REASONS SCR.A/1176/2004 18/75 JUDGMENT 12. The first aspect which deserves to be examined is the scope and ambit of Section 306 of IPC for abetment of suicide and second would be for the scope and ambit of the alleged offence under the Atrocities Act. The third aspect would to maintain rule of law for alleged offences as against the sentiments. The fourth aspect would be to consider whether the allegations made in the complaint and the material available make out the commission of alleged offences. The fifth aspect would be the peculiar facts and circumstances of the case which deserves to be recorded and the sixth would be whether law has provided any remedial measure. The seventh and the last would be to pass final order in the present case. 13) In the decision of the Apex Court in case of Netai Dutta vs. State of West Bengal, reported in 2005(2) SCC, 659, an employee of a Company was transferred from one place to another and he did not join. Thereafter, he sent a letter of resignation expressing his grievance against stagnancy in salary and unpleasant situation and the Company accepted the resignation. Thereafter the said employee committed suicide and suicide SCR.A/1176/2004 19/75 JUDGMENT note was found alleging in the note that Netai Dutta and one Paramesh Chatterjee engaged him in several wrong doing, which was alleged as torture and the brother of the deceased filed complaint against Netai Dutta and others under Section 306 of IPC. The learned Single Judge of the High Court of Calcutta declined to quash the complaint. In appeal, however, the Apex Court in SLP, while quashing the complaint, at paragraphs 5 and 6 observed as under: “5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But, it may also be noticed that the deceased after his transfer in 1999 had never joined the office at 160 B.L. Saha Road, Kolkata and had absented himself for a period of two years and that the suicide took place on 16.2.2001. It cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide SCR.A/1176/2004 20/75 JUDGMENT of Pranab Kumar Nag. An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the "abetment" have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment".(Emphasis supplied) 6.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 willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the SCR.A/1176/2004 21/75 JUDGMENT 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.” The Apex Court thereafter at para 7, inter alia, observed that “7. ... 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.” 14. Thereafter, ultimately the exercise of the power under Section 482 of Cr. P.C., the criminal proceedings initiated against the appellant were quashed. 15. In case of Sanju alias Sanjay Singh Sengar vs. SCR.A/1176/2004 22/75 JUDGMENT State of MP, reported in 2002(5) SCC, 371, of course at the stage of quashing of the charge- sheet after referring to the earlier decision of the Apex Court in case of Swamy Prahaladdas vs. State of M.P., reported in 1995 Supp (3) SCC, 438; in case of Mahendra Singh v. State of M.P., reported in 1995 Supp (3) SCC 731; in case of Ramesh Kumar v. State of Chhattisgarh, reported in 2001 (9) SCC, 618, it has been further observed at para 12, inter alia, as under: “12. ... Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. (Emphasis supplied) It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the SCR.A/1176/2004 23/75 JUDGMENT deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drove the deceased to commit suicide.” (Emphasis supplied) The Apex Court, after taking into consideration the suicide note further observed at para 14 as under: 14.A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. (Emphasis supplied) One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt. Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not a handy work of a man with sound mind and sense. (Emphasis supplied) SCR.A/1176/2004 24/75 JUDGMENT Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161 Cr.P.C. Before the Investigation Officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26th July, 1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and