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Bhaskar Rao and ors. Vs. L. Kamalamma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Petitions 2972/2001 and 562/2002
Judge
Reported inILR2005KAR2129; 2005(4)KarLJ66
ActsConstitution of India - Articles 226 and 227; Indian Penal Code (IPC) - Sections 30, 107 and 306; Code of Criminal Procedure (CrPC) - Sections 482
AppellantBhaskar Rao and ors.
RespondentL. Kamalamma and ors.
Appellant AdvocateS.K. Venkata Reddy, Adv.
Respondent AdvocateN. Samba Murthy, Adv.
DispositionPetition allowed
Excerpt:
.....and issue of process, the petitioners are before this court seeking for setting aside the impugned proceedings and also issuance of process. there is no material on record to show that the ingredients of offence of abetment had been satisfied and, therefore the offence under section 306, ipc cannot be said to have been committed......thusa mere intention or preparation to instigate is neither instigation nor abetment. to convict a person of abetment of commission of an offence by the public by means of a leaflet posted on the walls of a particular building, it is necessary to show that either the public should have read the leaflets in question or that the leaflets should have been exposed to public gaze.8. in the decision reported in 1996 crl.lj 894, the apex court has held thus:the charge sheet under section 306 ipc is basically based on the dying declaration of the deceased which when translated reads as follows:-'my mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. they beat me and abused me. my husband mahendra wants to marry a second time. he has illicit connections with.....
Judgment:
ORDER

Huluvadi G. Ramesh, J.

1. These Petitions are filed under Section. 482, Cr.P.C. being aggrieved by the order of issue of process by the III Addl. City CMM, Bangalore in CC 6843/2001 by order dated 7.7.2001 for the offence under Section 306, IPC.

2. One R.K. Shivakumar had filed a Complaint against the petitioners herein and one more person alleging offence under Section 306, IPC that R.K. Girish Kumar, brother of the complainant was working at Bangalore Dairy and that he was subjected to mental cruelty and harassment. Being unable to tolerate, on 12.6.1992, the said Girish Kumar committed suicide by setting fire to himself. Later he was shifted to Victoria Hospital on the same day. While on the way to the Hospital, he is said to have informed the complainant that the accused persons, who are employees of Bangalore Dairy, were harassing him and ill-treating him and as such, he himself set fire and committed suicide. The said Girish Kumar was a Trade Union member and was playing an active role in the activities of the Milk Dairy Union. Stating that the accused persons were harassing and ill-treating Girish Kumar, his brother - complainant filed a complaint. The Vijayanagar Police, after investigation, filed B report and the same has been challenged by the complainant before the Court below and after taking cognizance of the offence and recording sworn statement of the complainant and other witnesses who are members of the Trade Union, the Court below stating that there is a prima facie case, ordered issue of process. Being aggrieved by the sad order of taking cognizance and issue of process, the petitioners are before this Court seeking for setting aside the impugned proceedings and also issuance of process.

3. Heard the counsel for the petitioners on the previous occasion and also the Counsel representing the respondent - complainant.

Petitioners are directed to implead the State as party. Learned SPP is directed to take notice. Heard the SPP.

Learned Counsel for the petitioners submitted that the petitioners have been falsely implicated in the case and there is no prima facie case against the petitioners for the offence under Section 306, IPC. The police, after duly investigating the case, have filed B report. It is also submitted that the over act attributed against the petitioners does not attract the offence under Section. 306, IPC. There is neither abetment or any aid being extended or facilitated the deceased to commit suicide and the Trial Court erred in taking cognizance.

In support of his contention, Learned Counsel relied upon the decisions reported in ROOF KISHORE MADAN v. STATE 2001 Crl.LJ 1219, EMPEROR v. PARIMAL CHATTERJEE AND ORS. : AIR1932Cal760 , MAHENDRA SINGH AND ANR. v. STATE OF MADHYA PRADESH 1996 Crl.LJ 894, PEPSI FOODS LTD. AND ANR. v. SPECIAL JUDICIAL MAGISTRATE AND ORS. 1997(4) Crimes 212 (SC).

4. Per contra, Learned Counsel for the respondents submitted that there is a prima facie case against the petitioners and there is a oral dying declaration of the deceased before his death regarding the harassment meted out by the petitioners and accordingly submitted that the Trial Court has rightly issued process against the petitioners.

5. Having heard the Counsel for the parties, the point that arises for consideration is whether the order of issue of process against the petitioners is liable to be quashed.

6. In the decision reported in 2001 Crl.LJ 1219 rendered by the Delhi High Court, it is held thus:

The law on the subject has been discussed at length in various judgements of the High Courts and the Supreme Court in Hira Lal Jain v. State, 2003 Ad (Crl) DHC 121. It was held that on reading of Clause 'First' of S. 107 IPC, it is clear that a person who instigates other to do a thing, abets him to do that thing. A persons is said to instigate another when he incites or otherwise encourages another to commit a crime. In the present case, a reading of the so called suicide note does not remotely suggest that the petitioner had incited the deceased to commit suicide. There is no material on record to show that the ingredients of offence of abetment had been satisfied and, therefore the offence under Section 306, IPC cannot be said to have been committed. In Taposi Chakervarthi v. State, 2000 III AD (Cr.) DHC 233 this Court has elaborately gone into what are the ingredients necessary to satisfy an offence under Section 30 IPC.

7. In the decision reported in : AIR1932Cal760 , it is held thus

A mere intention or preparation to instigate is neither instigation nor abetment. To convict a person of abetment of commission of an offence by the public by means of a leaflet posted on the walls of a particular building, it is necessary to show that either the public should have read the leaflets in question or that the leaflets should have been exposed to public gaze.

8. In the decision reported in 1996 Crl.LJ 894, the Apex Court has held thus:

The charge sheet under Section 306 IPC is basically based on the dying declaration of the deceased which when translated reads as follows:-

'My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.'Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide, and if any person commits suicide due to that reason, he 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 to mean that a person abets the doing of 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 pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal ommission the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge.

9. In the decision reported in 1997 (4) CRIMES 212 (SC), it is held thus:

Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Article 226 and 226 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226.

Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercise its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory.

10. The exercise of power under Section 482 Cr.P.C is with an intention and the sole object to prevent abuse of process of Court or otherwise to secure the ends of justice. Where the allegations made in the FIR or the complaint or any other statement is taken on their face value and accepted in their entirely and they do not constitute any offence of making out a case against the accused and the power under Section 482, Cr.P.C. has no limits. Although it has to be sparingly exercised, still it is an obligation on the Court to prevent the abuse of process of the Court as is held in the decision reported in the last cited decision.

11. In the decision relied upon by the petitioners reported in 1996 Crl.LJ 894, the Apex Court referring to the facts in the said case held that no ingredients of abetment are attracted on the statement of the deceased as such the conviction of the accused was under Section 306, IPC merely on the allegation of harassment to the deceased is not sustainable. Accordingly, it acquitted the accused of the charges leveled against him. As per Section 107, IPC 'abetment' means a person who instigates other to do a thing, abets him to do that thing, and a person is said to instigate another person when he incites or encourages another to commit a crime.... The suicide note does not even remotely suggest that the petitioner had instigated the deceased to commit suicide and there is no material referred to show that ingredient to satisfy and therefore, it was held that the offence under Section 306, IPC cannot be said to have been committed.

12. In the case on hands, as per the complaint filed some allegation has been made against the petitioners stating that the deceased had been harassed and as such, the deceased committed suicide and he is said to have so disclosed before the complainant. In the B report submitted and also in the note said to have been left by the deceased, the deceased is said to have written that there is misuse of power in the milk dairy and using influence, he had been transferred to some other place although he was honest and since one of the petitioners had transferred some of the colleagues of the deceased, and such transfers were effected to take revenge on the employees belonging to the group of the deceased, stating that he being frustrated in life, committed suicide. Similar is the statement said to have been made to the complainant when the deceased was being taken to the hospital after he set himself ablaze.

13. None of the facts noted above and what is stated in the death note, attracts Section 107 nor it amounts to a prima facie offence committed under Section 306, IPC. In the circumstances, the investigating authorities have rightly, after investigating into the matter, have filed B report. Having regard to the ratio laid down in the above noted decisions, unless there is an element of abetment or instigation or other otherwise which leads to abetment to commit suicide, it cannot be said that there is a prima facie case for offence under Section 306, IPC. In that view of the matter, taking cognizance and issue of process against the petitioners is liable to be quashed,

14. Accordingly, petitions are allowed. The order of taking cognizance and issue of process against the petitioners by the III Additional CMM, Bangalore in CC 6843/2001 by order dated 7.7.2001, is quashed.


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