THE STATE OF MADHYA PRADESH versus DEEPAK on 13 March 2019

1. Leave granted.

2. The present appeal arises from a judgment dated 31 January,E2018 of a learned Single Judge of the Indore Bench of the High Court ofMadhya Pradesh[1] discharging the Respondent from charges framed bythe Special Judge, Neemuch. The Special Judge, Neemuch had by anorder dated 13.10.17 in Special Case No. 51 of 2017 framed chargesagainst the respondent under Section 306 of the Indian Penal Code,F1860[2] and Section 3(2)(V) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989.

3. In pursuance of the notice issued by this Court on 19 November,2018, the respondent has entered appearance through learned counsel.We have heard the Deputy Advocate General for the State of MadhyaPradesh and learned counsel for the respondent.G

4. On 9 August 2017, Jyoti Sharma committed suicide by consumingpoison at her residence at Neemuch. Immediately after she consumedpoison, she was moved to the District hospital for treatment. The dying 1In Criminal Revision No. 458 of 2018

2”Penal Code”

H

declaration of the victim was recorded on 9August 2017 in the presenceof the Naib Tehsildar, Neemuch. The relevant part of the dyingdeclaration is extracted below:

“Question: What has happened to you?

Answer: I have consumed poison.

Question: Why you have consumed poison?

Answer: I am not able to get the job, wherever I go, DeepakBhamawat R/o Jeeran, get me sacked out from the job. Earlierhe had molested me, on which, I had instituted a case against him,since then, he is harassing me.

Question: Whether you want to say anything else?

Answer: No.”

5. Jyoti Sharma died on 10 August 2017 at a hospital in Udaipurwhere she was admitted for treatment. The First Information Report[3]was registered on 16August 2017. During the course of the investigation,the respondent was arrested on 6September 2017. On the completion ofthe investigation, the investigating officer submitted a charge-sheet on22 September 2017 under Section 306 of the Penal Code and Section3(2)(v) and Section 3(2)(v)(a) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act before the Special Judge, Neemuch.Cognizance was taken on 13October 2017. Charges were framed on 10January 2018. Challenging the order framing charges, a Criminal Revisionwas filed before the High Court.

6. The Single Judge, by the order impugned in these proceedings,set aside the order of the trial judge and directed that the respondent bedischarged.

7. The Deputy Advocate General has adverted to the charge-sheet which has been submitted after the investigation was completed.Learned counsel submitted that there is a dying declaration of the victimwhich was recorded on 9 August 2017. It was urged that the investigationhas disclosed that the respondent and the deceased were employees inthe Central Bank. The respondent had obtained a loan in the name ofthe deceased, allegedly after forging her signature. The loan was notpaid, as a result of which on 3 August, 2017, Central Bank issued a 3”FIR”

A

B

C

D

E

F

G

H

Anotice to the deceased for the repayment of the loan. During the courseof the investigation, the investigating agency found that three complaintswere submitted by the victim: on 1 November 2016 to the Station HouseOfficer, P.S. Jeeran; in December 2016 at P.S. Jeeran and another on6 January 2017 to the Collector, Neemuch making specific allegationsthat the respondent was harassing her. The respondent is alleged toBhave caused the deceased to be terminated from employment and alsoallegedly caused her landlord to oust her from possession. On this material,which has emerged in the course of the investigation, it is urged that thecase for discharge was not made out.

8. On the other hand, learned counsel appearing on behalf of theCrespondent placed reliance on the fact that in the FIR all that has beenadverted to is that the respondent had got the deceased terminated fromher job in the Central Bank and thereby harassed her and tortured her asa woman belonging to a Scheduled Caste for depositing the installmentsof the loan. Learned counsel submitted that on the contents of the FIR,Dthe High Court was justified in coming to the conclusion that there wasno provocation, inducement or incitement that would fall within thedescription of ‘abetment’ to sustain a charge under Section 306 of thePenal Code.

9. The only circumstance which has weighed with the High CourtEin passing the impugned order is what has been stated in the followingextract:

“11. …. Merely the deceased was failing to get any job and she isunder impression that the petitioner is creating burden and henceshe did not get any new job. He never intended that deceasedshould commit suicide.”F

The High Court held thus:

“16 …in the facts and circumstances of the present case, there isno evidence with regard to provocation, incitement orencouragement for commitment of suicide by the deceased…”G

10. We shall now examine whether the High Court has correctlyexercised its revisional jurisdiction under Section 397 read with 401 ofthe Code of Criminal Procedure, 1973[4] in discharging the respondent ofthe charges framed by the Special Judge, Neemuch.

H4”Procedure Code”

[DR. DHANANJAYA Y CHANDRACHUD, J.]

11. In Amit Kapoor v Ramesh Chander[5], a two-judge benchof this Court elucidated on the revisional power of the Court under Section397. Justice Swatanter Kumar noted thus:

“12. Section 397 of the Code vests the court with the power tocall for and examine the records of an inferior court for thepurposes of satisfying itself as to the legality and regularity of anyproceedings or order made in a case. The object of this provisionis to set right a patent defect or an error of jurisdiction or law.There has to be a well-founded error and it may not be appropriatefor the court to scrutinise the orders, which upon the face of itbears a token of careful consideration and appear to be inaccordance with law. If one looks into the various judgments ofthis Court, it emerges that the revisional jurisdiction can be invokedwhere the decisions under challenge are grossly erroneous, thereis no compliance with the provisions of law, the finding recordedis based on no evidence, material evidence is ignored or judicialdiscretion is exercised arbitrarily or perversely. These are notexhaustive classes, but are merely indicative. Each case wouldhave to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdictionof the higher court is a very limited one and cannot be exercisedin a routine manner. One of the inbuilt restrictions is that it shouldnot be against an interim or interlocutory order. The Court has tokeep in mind that the exercise of revisional jurisdiction itself shouldnot lead to injustice ex facie. Where the Court is dealing with thequestion as to whether the charge has been framed properly andin accordance with law in a given case, it may be reluctant tointerfere in exercise of its revisional jurisdiction unless the casesubstantially falls within the categories afore-stated. Even framingof charge is a much advanced stage in the proceedings under theCrPC.”

The Court also enunciated a set of principles which the High Courtsmust keep in mind while exercising their jurisdiction under the provision:

“27. .. At best and upon objective analysis of various judgmentsof this Court, we are able to cull out some of the principles to beconsidered for proper exercise of jurisdiction, particularly, with 5(2012) 9 SCC 460

A

B

C

D

E

F

G

A

B

C

D

E

F

G

H

regard to quashing of charge either in exercise of jurisdiction underSection 397 or Section 482 of the Code or together, as the casemay be:

27.2. The Court should apply the test as to whether theuncontroverted allegations as made from the record of the caseand the documents submitted therewith prima facie establish theoffence or not. If the allegations are so patently absurd andinherently improbable that no prudent person can everreach such a conclusion and where the basic ingredients ofa criminal offence are not satisfied then the Court mayinterfere.

27.3. The High Court should not unduly interfere. Nometiculous examination of the evidence is needed forconsidering whether the case would end in conviction ornot at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutelyessential to prevent patent miscarriage of justice and forcorrecting some grave error that might be committed bythe subordinate courts even in such cases, the High Courtshould be loath to interfere, at the threshold, to throttlethe prosecution in exercise of its inherent powers.

27.9. Another very significant caution that the courts haveto observe is that it cannot examine the facts, evidenceand materials on record to determine whether there issufficient material on the basis of which the case would endin a conviction; the court is concerned primarily with theallegations taken as a whole whether they will constitutean offence and, if so, is it an abuse of the process of courtleading to injustice.

27.13. Quashing of a charge is an exception to the rule ofcontinuous prosecution. Where the offence is even broadlysatisfied, the Court should be more inclined to permit continuationof prosecution rather than its quashing at that initial stage. TheCourt is not expected to marshal the records with a view to decideadmissibility and reliability of the documents or records but is anopinion formed prima facie.”

12. In State of Rajasthan v Fatehkaran Mehdu[6], a two-judgebench of this Court has elucidated on the scope of the interferencepermissible under Section 397 with regard to the framing of a charge.Justice Ashok Bhushan held thus:

“26. The scope of interference and exercise of jurisdiction underSection 397 CrPC has been time and again explained by this Court.Further, the scope of interference under Section 397 CrPC at astage, when charge had been framed, is also well settled. At thestage of framing of a charge, the court is concerned notwith the proof of the allegation rather it has to focus on thematerial and form an opinion whether there is strongsuspicion that the accused has committed an offence, whichif put to trial, could prove his guilt. The framing of chargeis not a stage, at which stage final test of guilt is to be applied.Thus, to hold that at the stage of framing the charge, the courtshould form an opinion that the accused is certainly guilty ofcommitting an offence, is to hold something which is neitherpermissible nor is in consonance with the scheme of the Code ofCriminal Procedure.”

13. In view of the above decisions of this Court, we shall nowdetermine whether the High Court has correctly exercised its revisionaljurisdiction. The High Court had held that the lower court had erred inframing charges in the present case as there was no evidence withregard to provocation, incitement or encouragement which would leadto the commission of suicide by the deceased.

14. It is of relevance to refer to certain judgements of this Court.In Chitresh Kumar Chopra v. State (NCT of Delhi)[7], the appellantand two other individuals were charged under Section 306 read withSection 34 of the Penal Code. It had been alleged that the appellant andthe other accused persons had forcibly compelled the deceased to sign asettlement giving up a part of his share in the profits from the sale ofcertain land. This led to a dispute and as a result of the mental harassmentsuffered by the deceased, he committed suicide. The Court affirmed theframing of charges by the trial court. The two-judge Bench of thisCourt laid down the ingredients of the offence of abetment of suicide.Justice D K Jain held thus:

6(2017) 3 SCC 198

7(2009) 16 SCC 605

A

B

C

D

E

F

G

H

A“19. As observed in Ramesh Kumar [(2001) 9 SCC 618 : 2002SCC (Cri) 1088] , where the accused by his acts or by acontinued course of conduct creates such circumstancesthat the deceased was left with no other option except tocommit suicide, an “instigation” may be inferred. In otherwords, in order to prove that the accused abetted commission ofBsuicide by a person, it has to be established that:

(i) the accused kept on irritating or annoying the deceased bywords, deeds or willful omission or conduct which may evenbe a willful silence until the deceased reacted or pushed orforced the deceased by his deeds, words or willful omission orCconduct to make the deceased move forward more quickly ina forward direction; and

(ii) that the accused had the intention to provoke, urge orencourage the deceased to commit suicide while acting in themanner noted above. Undoubtedly, presence of mens rea isDthe necessary concomitant of instigation.”

After due consideration of the facts and circumstances, the Court notedthat prima facie, the offence of abetment of suicide was made out:

E“22. In the present case, apart from the suicide note, extractedabove, statements recorded by the police during the course ofinvestigation, tend to show that on account of business transactionswith the accused, including the appellant herein, the deceasedwas put under tremendous pressure to do something which hewas perhaps not willing to do. Prima facie, it appears that theFconduct of the appellant and his accomplices was such thatthe deceased was left with no other option except to endhis life and therefore, clause Firstly of Section 107 IPC wasattracted.”

GIt was also noted that at the stage of framing of charges, the Court hasto consider the material only with a view to find out if there is a groundfor “presuming” that the accused had committed the offence:

“25. It is trite that at the stage of framing of charge, the court isrequired to evaluate the material and documents on record with aHview to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constitutingthe alleged offence or offences. For this limited purpose, the courtmay sift the evidence as it cannot be expected even at the initialstage to accept as gospel truth all that the prosecution states. Atthis stage, the court has to consider the material only with a viewto find out if there is ground for “presuming” that the accused hascommitted an offence and not for the purpose of arriving at theconclusion that it is not likely to lead to a conviction.”

15. A two-judge Bench of this Court, in Rajbir Singh v State ofU P[8]noted that in accordance with Section 227, the High Court mustascertain whether there is “sufficient ground for proceeding against theaccused” or there is ground for “presuming” that the offence has beencommitted. Justice G P Mathur held thus:

“9. In Stree Atyachar Virodhi Parishad v. Dilip NathumalChordia, the Court while examining the scope of Section 227held as under:

“… Section 227 itself contains enough guidelines as to the scopeof inquiry for the purpose of discharging an accused. It providesthat ‘the judge shall discharge when he considers that there isno sufficient ground for proceeding against the accused’. The‘ground’ in the context is not a ground for conviction, but aground for putting the accused on trial. It is in the trial, the guiltor the innocence of the accused will be determined and not atthe time of framing of charge. The court, therefore, need notundertake an elaborate inquiry in sifting and weighing thematerial. Nor is it necessary to delve deep into various aspects.All that the court has to consider is whether theevidentiary material on record, if generally accepted,would reasonably connect the accused with the crime.”

10. The High Court did not at all apply the relevant test,namely, whether there is sufficient ground for proceedingagainst the accused or whether there is ground forpresuming that the accused has committed an offence. Ifthe answer is in the affirmative an order of discharge cannotbe passed and the accused has to face the trial. The HighCourt after merely observing that “as the firing was aimed at theother persons and accidentally the deceased Pooja Balmiki was 8(2006) 4 SCC 51

A

B

C

D

E

F

G

H

A

Apassing through that way and she was hit” and further observingthat “the applicant neither intended to kill the deceased nor wasshe aimed at because of the reason that she was a ScheduledCaste” set aside the order by which the charges had been framedagainst Respondent 2. There can be no manner of doubt that theprovisions of Section 301 IPC have been completely ignored andBthe relevant criteria for judging the validity of the order passed bythe learned Special Judge directing framing of charges have notbeen applied. The impugned order is, therefore, clearly erroneousin law and is liable to be set aside.”

C

16. In the present case, there is sufficient material on record touphold the order framing charges of the Trial Court. The discharge ofthe accused was not justified. The High Court has evidently ignoredwhat has emerged during the course of the investigation. The materialindicates that several complaints were filed by the deceased. The last ofDthem was filed a few days before the suicide. It is alleged that therespondent had taken a loan of Rs 5 lakhs through fraudulent means inthe name of the deceased and an altercation took place between himand the deceased in that regard. Moreover, the respondent is alleged tohave got the deceased evicted from a rented house as well as terminatedEfrom her employment at Central Bank. There is a dying declaration.

17. We, however, clarify that this judgment shall not affect themerits of the trial.

18. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court dated 31January 2018.

F

Devika Gujral

Appeal allowed.

G

H