Ramulu vs State of Karnataka

Rathnakala, J.—This petition is filed u/s 482 of Cr.P.C. seeking to quash the order passed by the JMFC Sedam dated 1.8.2013 on his file C.C. No. 185/2008 whereby he allowed the application filed by the prosecution u/s 323 of Cr.P.C. and committed the case to the Sessions Court for trial. Though the matter was listed for admission, by consent of both parties it is taken up for final disposal.

The fact in brief is:

The petitioner herein was charge sheeted for the offences u/s 324 and 504 of IPC on the complaint of one Hemavati. The allegation of the prosecution is, on 2.4.2008 at 9:00 a.m. the accused/petitioner herein was taking his bullocks in front of the house of the complainant, on that the deceased/husband of the complainant objected him for letting his bullocks free and insisted him to take control of his bullocks: on that the accused retorted and abused the deceased filthily: there was confrontation between the two: the accused assaulted the deceased with his stick and caused injuries. The matter was pacified by the intervention of CWs. 3 and 4. The accused declared that he will lodge a complaint with the police about the incident and left the place. Depressed by the above incident, between 1-2 p.m., the deceased committed suicide by hanging himself to a tree in his land.

Though in the complaint four accused were named, the names of accused Nos. 2 to 4 were given up in the final report and only petitioner herein was brought to trial.

After procuring the accused, the trial Court framed charge for the offence u/s 324, 504 of IPC. The complainant/wife of deceased was examined as PW. 1. The son of the deceased/eye witness was examined as PW. 2. At this stage the prosecution filed an application u/s 323 of IPC. For peculiar drafting of the petition, 1 deem it worth reiterating:

Application u/s. 323 of Cr.P.C. filed on behalf of prosecution requesting for commit before Sessions Court.

That in the above case, the A.P.P. hereby submits as follows:

I, have go through the file the entire charge sheet reveals that, fact of the case.

A clear Evidence, violence of offence u/s. 306 or 302 clearly made out the case. Even depositions of PW-1 & 2 reveals it is A case. A case of suicide or murder But complainant did not known about husband''s life How ends, the records of this case and PW-2''s Deposition Inquest, P.M.E. Report shows it was murder case. Since any How, it will be determined before Hon''ble Sessions Court. Hence the Hon''ble Court may kindly commits the case and sent before Sessions Court Gulbarga for trial.

From the premise of the prosecution story that ''there was a quarrel on 2.4.2008 at 9:00 a.m. and thereafter deceased went to his land and committed suicide at 1:00 p.m.,'' the learned Magistrate holds it was due to abatement of commission of suicide. As per the post mortem report death occurred due to "ASPHYXIA" due to the hanging and the offence alleged is punishable u/s 306 of IPC. This was sufficient for the Magistrate to hold that the case is to be tried by the Sessions Court.

Sri Sudheer Kulkarni, learned counsel for the petitioner submits "there is no material either in the charge sheet papers or in the evidence of PWs. 1 and 2 that the petitioner provoked or instigated the deceased to commit the suicide. The generalised allegation that the petitioner told that he will go and lodge the complaint against the deceased cannot be said to have goaded or urged forward the deceased to commit suicide. In the absence of any element of abatement or rustication leading to abatement to commit suicide, no case u/s 306 of IPC is made out. The impugned order committing the case to Sessions Court for trial is erroneous and liable to be quashed".

Sri S.S. Aspalli, learned HCGP for the State submits "the Court has taken account of the nexus between the incident of assault which occurred on the same day at 9:00 a.m. and the commission of suicide, which occurred about four hours thereafter. The act of the accused voluntarily causing hurt to the deceased and thereafter threatening of lodging a police complaint against him was sufficient for the deceased in the natural course to get depressed, thereby take ultimate step of committing suicide. When the material on record indicate that due to the intentional and voluntary act of the accused the deceased has committed suicide, the learned Magistrate was well within his jurisdiction to commit the case to Sessions Court." On the above, he submits that the petition is liable to be dismissed as devoid of merits.

In the light of the above submissions, I have gone through the complaint, statements of the witnesses and also sworn testimony of PWs. 1 and 2 before the trial Court. In the complaint, PW. 1 apart from the incident of assault by the accused to the deceased has alleged that she was informed over phone by her daughter-in-law that while the deceased was in his agricultural land at 10:00 a.m. the accused No. 2 and his brothers assaulted him with their clubs and hanged into a tree. But in her 161 statement, the daughter-in-law of the complainant Sonabai states that the deceased had committed suicide by hanging himself to a tree, since he was depressed by the incident that occurred, in the morning. 161 statement of Harishchandra/PW. 2/Son of PW. 1 is also in tune with the statement of his wife. The statements of independent witnesses Gopya Nayak and Bikya Nayak CWs. 4 and 5 is in full conformity with the statements of the family members, of the deceased. During the inquest mahazar witnesses stated that the accused and his brothers at the instigation of his father assaulted the deceased and committed his murder by hanging. But none of the witnesses in their 161 Cr.P.C. statements mentioned that it was murder.

Since the learned Magistrate in the body of his order asserts ".....The evidence of prosecution records and evidence itself is reveals that, provisions of Section 306 of IPC, will attract", let us examine the possibility of Section 306 I.P.C. having semblance to the case on hand. Section 306 of the Indian Penal Code reads as under:

S. 306. 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.

From the above, it is clear, the gravamen of the offence punishable under the above Section is abetting suicide. The abetment though not elaborated or explained in the Section, Section 107 of I.P.C. defines abetment as under:

S. 107. 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.

That is to say, to constitute abetment, any of the following components shall be made out:

i) Instigation to commit the offence;

ii) Engaging in a conspiracy to commit the offence;

iii) Aiding the commission of an offence.

It has been the settled position of law that, abetment necessarily means some active suggestion or support to the commission of the offence. The word "instigation" literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. I fail to understand from which part of the records on hand, the learned Magistrate jumped to the conclusion that, provisions of Section 306 of I.P.C. are attracted. From none of the 161 Cr.P.C. statements of the witnesses or the evidence of PWs-1 and 2 so far recorded, any abetment as contemplated u/s 107 of I.P.C. can be inferred.

Of course, u/s 323 of the Code of Criminal Procedure, at any stage of the proceedings before signing the judgment, it is mandatory for a Magistrate to commit a case to the Court of Sessions, if it appears to him that, the case is one which ought to be tried by the Court of Sessions. That does not mean, a mere intuition without tangible material to that effect is sufficient for him to commit a case. It is a must for him before such committal to form a judicial opinion that the case is one which ought to be tried by the Court of Sessions. The Magistrate, is bridging the simple case of assault inflicted on the deceased at morning 9 a.m. to his suicide a few hours thereafter. Assuming for a while that the deceased was agonized and depressed by the incident of 9 a.m., then also the said situation will not fall under any of the category of abetment contemplated in Section 107 of I.P.C. It is obvious that the learned Magistrate has exceeded his jurisdiction u/s 323 of Cr.P.C. in unnecessarily committing the case to Sessions Court, which is nothing but abuse of the powers of his own Court. For no reason the petitioner herein is driven to Sessions Court.

It is well settled that inherent powers u/s 482 of Cr.P.C. will be exercised by the High Courts sparingly in the circumstance laid down in the Section itself i.e. 1) to give effect to any order under Cr.P.C. 2) to prevent abuse of process of any Court 3) to secure ends of justice. This extraordinary jurisdiction can be exercised in respect of incidental or supplemental power irrespective of nature of proceedings [ Popular Muthiah Vs. State represented by Inspector of Police, ].in the back drop of above legal position, I hold ends of justice will be served, by quashing the impugned order.

Accordingly, this Criminal Petition is allowed. The order dated 1st August 2013 passed by the learned J.M.F.C., Sedam, in C.C. No. 185/2008, in committing the said case to the Principal District & Sessions Judge, Gulbarga, for trial is quashed.