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DR. SUBHASH MANCHANDA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Dr. Subhash Manchanda v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 2016 of 2006 [2006] RD-AH 8575 (28 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved/AFR

   Criminal Misc. Writ Petition No. 2016 of 2006.

Dr. Subhash Manchanad. .... .... ...Petitioner.

Versus

State of U. P. and others. .... .... ...Respondents.

With;

   Criminal Misc. Writ Petition No. 2018 of 2006.

Professor A.S. Kukla. .... .... ...Petitioner.

Versus

State of U. P. and others. .... .... ...Respondents.

   -------

 Present:

    (Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Shiv Shanker)

Appearance:

For the Petitioner/s :    Sri Gopal Swaroop Chaturvedi, Sr. Advocate, &

    Sri Anil Tiwari.

For the Respondent Nos. 1 to 3: Sri S.M.A. Rizvi, A.G.A.

For the Respondent No. 4  :   Sri Sanjay Kumar Singh.

-----------

Amitava Lala, J.-- The complainant is mother of the deceased Manoj Kumar. She filed the impugned first information report (hereinafter called as 'F.I.R.') on 06th April, 2005. It appears from the F.I.R. that her son was working in the Computer Cell of the Agra University since 20th May, 2000. He had been working with full honesty. There had been no complaint against her son. Suddenly he was falsely charged with leakage of one paper of B. Com. Second year without making any enquiry by the present Vice-Chancellor. He got him suffered serious mental and physical torture by asking his shadow to lift him and beat by detaining him in the locked room for 6-7 hours. Under the orders of the Vice-Chancellor, Manchanda and Ramesh Sharma had also harassed him mentally. On the fateful day in the morning at about 10.25 AM he appended his signature by going to his duty and during his duty in the university he had eaten something on account of which his condition became critical. He was taken to the hospital where he died.

Before his death he wrote a letter/suicide note as follows:  

"I Manoj Kumar is working in the confidential Computer Cell. I was summoned in the office by Dr. Subhash Manchanda, Secretary to the Vice-Chancellor on 03.04.2005 in the noon by telephone. And handed over the papers of B.Com and M.Com for typing. At that point of time Dr. H.P. Sinha, Dr. A.K. Saxena, Hari Singh and Yogendra Kumar Savita were present there in the office. No enquiry was made from these persons and charges were imposed upon me directly. And the Vice-Chancellor has detained me for 6 hours in a room by asking his Security Guard for the same and have been beaten. Whereas no enquiry was done against additional other employees Dr. Subhash Manchanda, Dr. H.P. Sinha, and A.K. Saxena, Hari Singh and Yogendra Kumar Savita. And all charges were imposed upon me as I have leaked the papers of B.Com Second year I am being removed from the services."

             (As per translated copy annexed to page 37 of the

    writ petition without making any correction)

From the injury report we found seven ante mortem injuries. In the injury report it was said that cause of death could not be ascertained. Then viscera was preserved. Ultimately, the viscera report was made available, from which it appears that organochloro insecticide poison was available in the organs.

Section 306 of the Indian Penal Code (hereinafter in short called as 'I.P.C.') speaks for abetment of suicide, as follows:-

"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."

This offence is cognizable, non-bailable, non-compoundable and triable by the appropriate court of session. The F.I.R. is not under Section 306 alone but also under Sections 330 and 342 I.P.C.. Those sections are not so major in comparison to Section 306 I.P.C. First one is made for voluntarily causing hurt to extort confession, or to compel restoration of property. The offence under such section is cognizable, bailable, non-compoundable and triable by Magistrate of first class. The second one i.e. Section 342 I.P.C. is made for punishment for wrongful confinement. This offence is cognizable, bailable, compoundable and triable by any Magistrate. Therefore, the offence under Section 342 is not even major than Section 330. However, we have to take the offence as a whole under the sections in the F.I.R..

The moot point of the argument of Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel appearing in support of the petitioners in both the writ petitions, is that the date of occurrence is 03rd April, 2005 and the date of death and complaint is of 06th April, 2005. Therefore, it can not be held that cause of death is due to mental or physical torture allegedly done on 03rd April, 2005 i.e. three days before the date of occurrence.

He relied upon two judgements of the Supreme Court reported in (2002)5 SCC 371 (Sanju alias Sanjay Singh Sengar Vs. State of M.P.) and 2005 SCC (Cri) 543 (Netai Dutta Vs. State of W.B.) in support of his contentions.

Fact of the first referred judgement is that there were strained relation between the deceased and his wife. On 25th July, 1998 the deceased went to the house of the appellant therein to bring back his wife. There was a quarrel between the appellant and the deceased, who came back alone. The deceased told his brothers and other acquaintances that the appellant had threatened and abused him by using filthy words. On 27th July, 1998 the deceased was found dead. The autopsy, which was conducted on that day itself, revealed that the death was due to asphyxia as a result of hanging, within 24 hours. The deceased also left a suicide note, which showed his disturbed state of mind but otherwise he blamed the appellant for the suicide. The appellant's petition for quashing of charge-sheet under Section 482 of the Code of Criminal Procedure was dismissed by the High Court. As a result whereof, the appeal was proceeded before the Supreme Court. The Supreme Court allowed the appeal and the charge-sheet was quashed.

While considering the case the Court held that even if one has said 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 inadvisable 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 on the spur of the moment can not be taken to be uttered with mens rea. It is in a fit of anger or emotion. Secondly, the alleged abusive words were told to the deceased on 25th July, 1998 but the deceased died on 27th July, 1998. Therefore,  assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it can not be said that the abusive language, which had been used on 25th July, 1998, drove the deceased to commit suicide. The suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by one on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would clearly itself point out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. Ultimately the charge dated 02nd July, 2001 framed by the appropriate Session Judge for the offence under Section 306 I.P.C. and the order/s of the High Court under challenge was/were quashed.

Factually in the second referred judgement we find that there is absolutely no averment in the alleged suicide note that the appellant therein had caused any harm to him or was in any way responsible for the delay in paying salary to the deceased. The deceased was very much dissatisfied with the working conditions at the workplace. But it may also be noticed that the deceased after his transfer in 1999 had never joined the office at Kolkata and had absented himself for a period of two years and the suicide took place on 16th February, 2001. Therefore, it can not be said that the appellant therein had in any way instigated to commit suicide or he was responsible for suicide of the deceased. Offence under Section 306 I.P.C. would stand only if there is an abetment for commission of crime. Parameters of abetment under Section 107 of the I.P.C. are to be taken into account. Factually the Court did not find cause of instigation or any role in the conspiracy for resulting commission of suicide by the deceased. The criminal proceeding was accordingly quashed.

Out of various judgements the Court relied upon a three Judges Bench judgement reported in 2001 (9) SCC 618 (Ramesh Kumar Vs. State of Chhattisgarh), which is arising out an appeal. In such referred judgement the question of instigation was meant as a reasonable certainty to incite the consequences.              

We have carefully gone through such judgements.

Mr. Sanjay Kumar Singh, learned Counsel appearing for the complainant, has drawn our attention to the referred judgements by saying that in those cases there was no injury like the case before this Court. Mr. S.M.A. Rizvi, learned Additional Government Advocate, supported the contention of the complainant.

From the aforesaid judgements it appears to us that both the orders were passed by the Supreme Court in the appeals arising out of the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter in short called as "Cr.P.C."). Provision of Section 482 Cr.P.C. is inbuilt in the statute and applicable even after filing of the charge-sheet till the end of the proceedings. It is an inherent power of the High Court to give effect to 'any order under this Code' or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Such power is very wide in nature. The cause of action arose herein not under Section 482 Cr.P.C. but under Article 226 of the Constitution of India. The scope of interference under Article 226 arose in the case of quashing an F.I.R. only when it is hit by the principles as laid down in AIR 1992 SC 604 (State of Haryana and others Vs. Ch. Bhajan Lal and others). But since there is a bar regarding anticipatory bail in the State, normally a prayer not to arrest is made. A Full Bench of this Court in 1987 (24) ACC 164 (Ashok Kumar Dixit Vs. State of U.P. and another) held that the scope of interference in connection with the dispute as above under Article 226 of the Constitution of India is narrower than the scope and ambit under Section 482 Cr.P.C.. There is a reason of saying so. Under Section 482 Cr.P.C. Court deals with stages or investigation as well as prosecution but under Article 226 of the Constitution of India the Court deals with stage of investigation only. In this unique jurisdiction of this High Court under Article 226 of the Constitution of India we can not consider merits or demerits of the case. We pass order/s only on the prima facie case, if necessary by giving some breathing time regarding arrest. Otherwise we do not pass any order interfering with the investigation. In our wisdom under the jurisdiction of the High Court under Article 226 of the Constitution of India we normally do not proceed with the matter when the charge-sheet has been filed or cognizance has been taken after completion of investigation. Hence, the ratio of such judgements can not be made applicable in this case only on the probabilities. In 2004 SCC (Cri) 353 (State of M.P. Vs. Awadh Kishore Gupta and others) even in a case of Section 482 Cr.P.C., when the jurisdiction of the High Court was invoked to quash the investigation, the Supreme Court held that it is not proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It is erroneous to assess the material before it and conclude that the complaint can not be proceeded with. The Supreme Court categorically held that very wide and very plenitude powers of the High court requires great caution in its exercise. The High Court being the highest court of the State should not refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and can not be seen in their true perspective without sufficient material. In AIR 1994 SC 1256 (Union of India and others Vs. B.R. Bajaj and others) even in dealing with the case of State of Haryana and others Vs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 it was categorically held by the Supreme Court that at the stage of first information report the Court should refrain from interfering when the first information report discloses commission of cognizable offence and statutory power of police to investigate. It can not be interfered with in exercise of inherent power of the Court.

"Mens rea" by necessary implication may be excluded from the statute only where it is absolutely clear that implication of object of the statute would otherwise be defeated. We are neither hearing the trial nor any proceeding in connection thereto nor appeal. The nature of mens rea that would be implied in a statute creating an offence depend upon the object of the Act and the provisions thereof. We can not even rule out the possibility of common object or common intention about instigation of committing such crime within the fore corners of Section 107 I.P.C. by specifying the factual aspects apart from narration of facts as before otherwise the same may affect the investigation and trial, which is otherwise not desirable.

Therefore, taking into totality of the matter we are of the view that no relief can be granted to the petitioners in these writ petitions. Therefore, both the writ petitions stand dismissed.

No order is passed as to costs.  

Both the aforesaid writ petitions will be governed by this common judgement passed hereunder and office is directed to keep a copy of this judgement/ order in both the aforesaid writ petitions.

             

(Justice Amitava Lala)

     I agree.

(Justice Shiv Shanker)

Dated:28th April, 2006.  

SKT/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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