S.S. Chheena vs Vijay Kumar Mahajan And another

Rajive Bhalla, J Â

By way of this revision, the petitioner challenges an order dated 18.7.2008, passed by the learned Additional Sessions Judge, Amritsar, framing

charges under Section 306 of the Indian Penal Code, against him.

A brief narrative of the facts that have led to the filing of the present revision petition would be appropriate. The petitioner is working as a Security

Officer at Guru Nanak Dev University, Amritsar. A dispute arose between Saurav Mahajan (deceased), a final year student of the Law Department

and Harminder Singh, another student regarding the theft of a mobile phone. The dispute was brought to the knowledge of Sh.M.D. Singh, the then

Head of the Department, who directed both students to submit their version in writing. The matter was referred to the university authorities for

necessary action. An enquiry was eventually referred to the petitioner on 13.10.2003. Saurav Mahajan committed suicide on 17.10.2003 by jumping

before a running train. A suicide note, dated 16.10.2003 was recovered from his pocket, which led to the registration of FIR No.81 dated 17.10.2003,

registered under Section 306 of the Indian Penal Code at Police Station GRP, Amritsar. Investigation was conducted by Deputy Superintendent of

Police Bahadur Singh, GRP, Amritsar, who found Sh.M.D. Singh, innocent. The second enquiry conducted by A.I.G. Paramjit Singh Gill also found

Sh.M.D. Singh innocent. On the basis of the aforementioned enquiries, the police submitted a final report under Section 173 of the Code of Criminal

Procedure against Harminder Singh. Charges were framed against Harminder Singh on 18.7.2005.

In the meanwhile, the complainant, i.e. Saurav Mahajan's father, filed a private complaint before the Additional Chief Judicial Magistrate, Amritsar,

alleging that Sh.M.D. Singh and the petitioner were responsible for abetting the suicide of his son. During the trial,arising from the FIR, the Public

Prosecutor filed an application, on 3.9.2005 for summoning the petitioner and Sh.M.D. Singh as additional accused. In the meanwhile, vide order dated

7.2.2006, the Additional Chief Judicial Magistrate, Amritsar, summoned the petitioner as well as Sh.M.D. Singh to face trial under Section 306 of the

Indian Penal Code. Vide order dated 20.3.2006, the application filed under Section 319 of the Code of Criminal Procedure was dismissed as not

pressed and vide order dated 18.7.2008, the complaint was clubbed with the trial arising from the FIR. The prosecution, thereafter, filed a charge

sheet, which led to the framing of charges against the petitioner and Sh.M.D. Singh. It would be relevant to mention here that Sh.M.D. Singh,

challenged the aforementioned proceedings by way of a petition filed under Section 482 of the Code of Criminal Procedure, but on account of his

demise, the petition was dismissed as infructuous.

Counsel for the petitioner submits that in view of the facts and circumstances of the present case, the charges framed against the petitioner are

unsustainable. The learned trial Court has proceeded to frame charges without examining the final report and the contradictions therein. The police

conducted a thorough investigation into FIR No.81 dated 17.10.2003 and declared the petitioner innocent. The petitioner has been arraigned as an

accused as he has been summoned in a private complaint, clubbed with the trial arising from the FIR. It is argued that the ingredients of `abetment' as

defined under Section 107 of the Indian Penal Code are conspicuously absent. In order to frame a charge under Section 306 of the Indian Penal Code,

it must be specifically alleged and prima facie established on the basis of cogent material, that the accused committed such acts as compelled the

deceased to commit suicide. The allegations levelled against the petitioner do not fulfil the ingredients of abetment. It is submitted that even if the facts

pressed into service against the petitioner are taken to be true, no offence can be said to be made out under Section 306 of the Indian Penal Code, as

in his suicide note, the deceased has not levelled any allegation of abetment against the petitioner. The petitioner, therefore, cannot be prosecuted on

the basis of vague and general allegations levelled by the deceased's father. The petitioner merely conducted an enquiry into the theft of a mobile

phone. The statements attributed to the petitioner are an after thought, as they do not find mention in the police record or in the suicide note. The

petitioner places reliance upon judgements of the Hon'ble Supreme Court reported as Swamy Prahaladdas V. State of M.P. and another, 1995 Supp.

(3) SCC 438, Ramesh Kumar V. State of Chhattisgarh, 2001(4) RCR (Crl.) 537, Sanju @ Sanjay Singh Sengar V. State of Madhya Pradesh, 2002 (2)

RCR (Crl.) 687, in support of argument that a word uttered in a fit of anger or emotion, without intending the consequences to actually follow, cannot

be said to be instigation sufficient to charge a person with the offence of abetment of suicide. The word `instigate' denotes incitement or urging to do

some drastic or unadvisable action or to stimulate or incite to do such act. It is further argued by reference to the aforementioned judgements that

mens rea is a necessary ingredient of the offence of instigation and as the facts alleged against the petitioner do not disclose any mens-rea, the trial

Court has no jurisdiction to frame charges against the petitioner.

Another argument pressed into service is that a Court, while considering the question of framing a charge, is required to examine the contents of the

final report and ascertain, whether there exists a prima facie case against the accused i.e. the ingredients of the offence. The trial Court, on the other

hand, failed in the exercise of its jurisdiction, to consider the material on record, appraise the contents thereof or to even hold by way of a perfunctory

finding that the ingredients of the offence under Section 306 of the Indian Penal Code are made out. It is, therefore, prayed that the revision petition be

allowed, the charge sheet and the order framing charges be set aside.

Counsel for the complainant, as also counsel for the State of Punjab submit that the present petition is misconceived and, therefore, not maintainable. It

is submitted that the petitioner is a Security Officer of the Guru Nanak Dev University, Amritsar and his past record as a police officer speaks volume

of his nature. He was held responsible for tatooing the words `jeb katri' (pick pocket) on the forehead of a woman, while in police service. It is

submitted that the deceased was a final year student of Department of Law, when a dispute arose regarding the theft of a mobile phone. The

deceased was being pressurised to pay a sum of Rs.30,000/-, though he was innocent. Sh.M.D. Singh, the then Head of the Department asked the

two students to submit their written response, with respect to the allegation of theft. The complainant alongwith his brother and his deceased son met

Sh.M.D. Singh, who held out a threat that he would ruin the career of the deceased, would not allow him to become a lawyer and used the words

TERA MUNDA CHOR HAI TE MAINTERE MUNDE NU ARREST KARWA DEWANGA"" (Your son is a thief. I will get him arrested).

Whereafter, they were directed to leave the office. Thereafter, they were forced to stand outside the office and during various meetings, frequent

references were made to the complainant's son as ""Chor"" (a thief) in the presence of his father and uncle. Eventually, the representations made by

both the boys were forwarded to the petitioner. The suicide note prominently names the petitioner and Sh.M.D. Singh at several places. Whether the

material available on record is sufficient to bring home the petitioner's guilt, is a matter to be considered at the stage of the trial. It is further submitted

that the behaviour of the petitioner alongwith Sh.M.D. Singh was cruel and humiliating leaving the deceased, a young student with no option, but to

take his own life, as narrated in the suicide note. On 14.10.2003, at about 10.00 AM, the complainant and his deceased son met the petitioner. Without

any provocation from the complainant or his son, the petitioner threatened them that in case they did not pay a sum of Rs.30,000/-, he would call the

police and get the deceased arrested. The petitioner, thereafter, asked the complainant to get out of the office and recorded the statement of his son.

He then told the complainant that his son was a shame to society, as well as to his parents and did not deserve the degree of LL.B. He humiliated the

complainant and his deceased son by using the words ""MUNDA CHOOR TE PIYO HIMAYATI"" (the son is a thief but the father supports him).

The petitioner further threatened that he would send Saurav Mahajan to jail, so as to teach a lesson to all other students. On 15.10.2003 and

16.10.2003, the complainant and his son again visited the office of the petitioner and Sh.M.D. Singh and were once again humiliated and threatened in

case they refused to pay Rs.30,000/-, he would ruin the career of the deceased. On 17.10.2003, when the deceased met the petitioner, he was again

threatened and humiliated. It is, therefore, submitted that the sufficiency or otherwise of the facts referred to in the FIR and in the complaint should be

left to the jurisdiction of the trial Court and as a prima facie case is made out for framing charges, the present petition be dismissed.

I have heard learned counsel for the parties and perused the impugned order framing charges.

The jurisdiction of a Court, while considering the final report, for the purpose of framing charges has been the subject matter of long line of

precedents. A reference to a few of these judgements would be appropriate. While considering the power of Court faced with the duty to frame

charges, the Hon'ble Supreme Court in State of Bihar V. Ramesh Singh, 1977 Criminal Law Journal, 1606 held as follows :-

Under S.226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by

what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the

case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass

thereafter an order either under S.227 or S.228 of the Code. If ""the Judge considers that there is not sufficient ground for proceeding against the

accused, he shall discharge the accused and record his reasons for so doing"", as enjoined by S.227. If, on the other hand, ""the Judge is of opinion that

there is ground for presuming that the accused has committed an offence which-

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused"", as provided in S.228. Reading the two provisions

together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of

the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of

the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if

proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before

recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228

of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in

his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the

conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the

accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The

presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in

France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the

Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully

accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, I cannot show that the accused committed the

offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to

one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of

pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is

to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily

and generally the order which will have to be made will be one under S.228 and not under S.227.

In Union of India V. Prafulla Kumar Samal and another, 1979 Criminal Law Journal 154, while once again considering the nature of the power to be

exercised by the trial Court at the stage of framing charges, it was held as follows :-

Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of

framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out

whether or not a prima facie case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion

against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The

test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application.

By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some

suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot

act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence

and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge

should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

The principles referred to in the aforementioned judgements make it apparent that while exercising powers under Section 227 of the Code of Criminal

Procedure, a trial Court has the undoubted power to sift and weigh evidence but for the limited purpose of ascertaining, whether or not a prima facie

case is made out against the accused and even where the material placed before the Court discloses grave suspicion, which has not been properly

explained, the Court would be fully justified in framing a charge and proceeding with the trial. The primary concern of a Court at the stage of framing

charges is to ascertain, whether there exists any prima facie material that may enable the Court to proceed against the accused, as a charge is a

precise formulation of the specific accusations made against a person, who is entitled to know its nature at the earliest stage and is not a reflection of

his guilt.

While considering the legality of an order framing charges, this Court may appraise the factual matrix of the case, but for the limited purpose of

ascertaining whether the facts alleged against the accused are sufficient to constitute an offence, for which he may be sent up for trial. If the facts

alleged against the accused do not disclose the commission of any offence or any reasonable suspicion in respect thereof and it appears from the facts

that there is no possibility of a conviction, a revisional Court would be justified in the exercise of its jurisdiction in proceeding to quash an order framing

charges.

The petitioner has been charged with the offence of abetment of suicide. Section 306 of the Indian Penal Code provides for punishment to any person,

who abets the commission of a suicide. The ingredients of abetment are set out in Section 107 of the Indian Penal Code, 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.

While considering the import of the expression used in Section 107 of the Indian Penal Code, particularly the word `instigation', the Hon'ble Supreme

Court in Ramesh Kumar V. State of Chhatisgarh (supra) held as follows :-

Instigation is to goad, urge forward, provoke, incite or encourage to do ""an act"". 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.

Similarly, in Sanjay Singh Senger V. State of Madhya Pradesh and others (supra), after considering the aforementioned judgement, the Hon'ble

Supreme Court held as follows :-

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. It is in a fit of anger and emotional.........

It is, therefore, apparent that in order to constitute an offence of abetment of suicide, the words spoken or the acts committed must necessarily be

sufficient to suggest, provoke, incite or encourage the deceased to take his own life i.e. the presence of mens rea is a necessary concomitant of

instigation and in the absence of these ingredients, a Court would be justified in refusing to frame charges.

The question, however, that requires answer is whether there is sufficient material on record to frame a charge for abetment of suicide. As referred

to herein before, while framing charges, a Court does not proceed to assess the truth, veracity or the efficiency of the evidence, so as to determine

whether the material placed before it is sufficient to hold an accused guilty of the alleged offence. A court at the stage of framing charges is merely

required to ascertain the existence of a prima facie case, sufficient to try the accused and, therefore, the contention by counsel for the petitioner that

the words attributed to the complainant's son, in the suicide note, and as disclosed in the deposition by the complainant and his witnesses do not

conclusively establish the abetment of suicide against the petitioner, cannot be accepted. The material against the petitioner is not just the suicide note

but includes threats, humiliating pharses etc. addressed to the deceased and his father over a period of few days. The material on record, in my

considered opinion, is sufficient to warrant arraigning of the petitioner to stand trial for abetment of suicide. The correctness of these allegations, the

weight to be assigned thereto and their evidentiary value would be considered by the trial Court. Whether the facts fulfill the strict ingredients of

Section 107 of the Indian Penal Code and as a consequence of an offence under Section 306 of the Indian Penal Code, would be determined by the

trial Court during the course of the trial. In matters relating to suicide, of primary significance is the mental state of the deceased prior to the suicide,

the nature of the words spoken and the circumstances surrounding the suicide and, therefore, the allegations against the petitioner, the words allegedly

spoken by him and the contents of the suicide note, in my considered opinion, cannot be held in the facts and circumstances of this case, to be

insufficient to arraign the petitioner as an accused for abetment of suicide and is, therefore, best left to the adjudicatory jurisdiction of the trial Court.

In view of the material on record, the learned trial Court had no option but to frame charges against the petitioner and this Court, in the exercise of its

revisional jurisdiction is unable to discern any error, apparent on the face of the record, whether of jurisdiction or of fact, as would enable it to interfere

with the impugned order or to record an opinion that no case, sufficient to charge the petitioner is made out for an offence of abetment of suicide.

In view of what has been stated herein above, the present petition is dismissed. Nothing stated herein shall be construed to be an expression of opinion

on the merits of the case.