Vikas Chandra vs The State Of Uttar Pradesh on 22 February, 2024

Supreme Court of India
Vikas Chandra vs The State Of Uttar Pradesh on 22 February, 2024
Author: C. T. Ravikumar
Bench: Rajesh Bindal, C.T. Ravikumar
2024 INSC 261

                                                                   Reportable

                                IN THE SUPREME COURT OF INDIA
                               CRIMINAL APPELLATE JURISDICTION

                                Criminal Appeal No.__________ of 2024
                                (Arising out of SLP (Crl.) No.1196/2018)


                        Vikas Chandra                             ...Appellant

                                                      Versus

                        State of Uttar Pradesh & Anr.          ...Respondents



                                               JUDGMENT

C. T. Ravikumar, J.

Leave granted.

1. The captioned appeal is directed against the judgment and order dated 10.10.2017 passed by the High Court of Judicature at Allahabad in Application under Section 482 No.5961 of 2013. As per the impugned order, in invocation of the power under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Cr.PC”), the High Court quashed the order dated 05.04.2012 passed by the Court of Chief Judicial Magistrate, Shahjahanpur in Criminal Case No.1478 of 2012, summoning the respondent No. 2 herein in the appeal to face the trial for the offence under Section 306 of the Indian Penal Code, 1860 (for short “the IPC”).
2. Heard learned counsel appearing for the appellant, learned counsel appearing for the respondent No.1–State of Uttar Pradesh and the learned counsel appearing for respondent No.2.
3. It is a matter where, initially, the complainant approached the Court of jurisdictional Magistrate with a complaint and on being refused to forward the complaint for investigation under Section 156 (3), Cr.PC, the matter was taken up in revision and upon its dismissal before the High Court in Criminal Miscellaneous Writ Petition No.9134/2005. Consequently, based on the orders of the High Court thereon, F.I.R. No.107/2005 was registered at Alhaganj Police Station under Section 306, IPC. The final report filed under Section 173(2), Cr.PC, would reveal that after the investigation, virtually, a closure report was filed by the investigating agency. The learned Magistrate did not accept the closure report. In the protest petition filed by the appellant herein the learned Magistrate made an inquiry as contemplated under Section 202, Cr.PC, and based on all the materials collected issued summons to respondent No.2 herein as per order dated 05.04.2012 and it is the challenge against the same that culminated in the impugned order.
4. Compendiously stated, the case of the appellant is that respondent No.2 committed abetment of suicide inasmuch as his father Shri Brijesh Chandra, committed suicide, by consuming poison, in the office of Sub- Mandi, Alhaganj, where he was working, after leaving a suicide note attributing responsibility for the same on respondent No.2. The appellant’s father was earlier working in Mandi Samiti, Puwaya as Security Guard and the respondent No.2 was the then Secretary of the Mandi Samiti. The complaint is to the effect that the salary of the deceased from March, 2004 to August, 2004 and September, 2004 onwards was not paid by Mandi Samiti, Jalalabad and on 12.10.2004, when he requested for its release, respondent No.2 told: –

“I will see that how will you get your salary and who will help you in getting your salary, I will bring out your military-man-ship and either you die or your children, but I do not care, get out of here, why you do not take poison”.

5. According to the appellant, the deceased was a retired military man and subsequent to the events on 12.10.2004 he returned home in moony mood and on 23.10.2004 at around 10.00 a.m. went to attend duty at Sub-Mandi, Alhaganj from Warikhas and committed suicide thereafter leaving a suicide note noting down such incident as well.
6. We have given our anxious consideration to the rival contentions and also have gone through the detailed discussion made by the High Court to come to the conclusion to invoke the power under Section 482, Cr.PC, to quash the order dated 05.04.2012. The bifold contentions of the appellant raised, based on law, against the impugned judgment are as under :-

(i) The High Court has committed grave error in law in quashing the summons issued against respondent No.2;
 (ii) The High Court has stepped beyond the settled guidelines and parameters ordained by this Court in catena of decisions with respect to exercise of power under Section 482, Cr.PC, and in view of such guidelines and parameters, the High Court was not justified in interfering with the summons issued by the Trial Court.

7. Per contra, the learned counsel appearing for respondent No.2 would submit that though the Magistrate is having the power to issue summons despite the fact that the Final Report filed under Section 173 (2), Cr.PC, is a closure report in the case on hand, it was issued against the respondent No.2 without satisfying on the ground for proceeding further in the manner required under law. At any rate, the summoning order did not reflect application of mind to form the opinion regarding sufficient basis for proceeding against him. The learned counsel for the State, the first respondent, would submit that there occurred no legal error in the matter of exercise of power by the High Court and hence, the order of the High Court did not suffer from any infirmity requiring interference. 8. There cannot be any doubt with respect to the power of the Magistrate to issue summons even after filing of a negative report by the police. In other words, the Magistrate is not duty bound to accept the Final Report filed under Section 173 (2), Cr.PC. The power not to accept the Final Report and to issue summons to the accused is recognized by this Court in the decision in Union of India v. Prakash P. Hinduja & Anr.1. In this context, it is to be noted that this Court in the decision in Bhagwant Singh v. Commissioner of Police & Anr.2 held that when a Final Report under Section 173 (2), Cr.PC, is filed before the Magistrate, which happens to be a negative report, usually called a “closure report”, he gets the following four choices to be adopted, taking into account the position obtained in the case concerned:

(1) to accept the report and drop the Court proceedings (2) to direct further investigation to be made by the police (3) to investigate himself or refer for the investigation to be made by another Magistrate under Section 159, Cr.PC, (4) to take cognizance of the offence under Section 200, (2003) 6 SCC 195 (1985) 2 SCC 537 Cr.PC, as a private complaint when the materials are sufficient in his opinion and if the complainant is prepared for that course.

9. Now, there can be no two views that “existence of power” and “exercise of power” are different and distinct. Having found that a Magistrate is jurisdictionally competent to take cognizance and issue summons despite the receipt of closure report following the prescribed procedure, we will have to consider the sustainability of the exercise of such power, in view of the legal and factual position obtained, in this case. In the decision in M/s Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.3, this Court laid down the golden standard for summoning an accused after holding that summoning an accused is a serious matter involving interference with life and liberty of a person. Paragraph 28 therein is noteworthy and it reads thus: –

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect (1998) 5 SCC 749  that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

10. In the contextual situation, it is also relevant to refer to the decision of this Court in D.N. Bhattacharjee & Ors v. State of West Bengal & Anr.4, wherein this Court observed that while conducting an inquiry, the Magistrate could go into the merits of the evidence collected by the investigating agency to determine whether there are sufficient grounds for proceeding.

It is relevant to note, in this context, that the sine qua non for exercise of the power under Section 204, Cr.PC, to issue process is the subjective satisfaction regarding the existence of sufficient ground for (1972) 3 SCC 414 proceeding.

11. Paragraph 7 in D.N. Bhattacharjee’s case (supra), in so far as it is relevant, reads thus: –

“7…… It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not”.

12. In Mehmood Ul Rehman & Ors. v. Khazir Mohammad Tunda and Ors.5 this Court held thus: –

“22…..The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court……….In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the accused is answerable before the criminal court, (2015) 12 SCC 420  there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction………..To be called to appear before criminal court as an accused is serious matter affecting one’s dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

13. A close scrutiny of the position of law revealed from the aforesaid decisions, which are constantly and consistently being followed by this Court, would reveal that issuance of summons is a serious matter and, therefore, shall not be done mechanically and it shall be done only upon satisfaction on the ground for proceeding further in the matter against a person concerned based on the materials collected during the inquiry.
14. In the aforesaid circumstances, the next question to be considered is whether a summons issued by a Magistrate can be interfered with in exercise of the power under Section 482, Cr.PC. In the decisions in Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr.6 and M/s Pepsi Foods Ltd.’s case (supra) this Court (2012) 5 SCC 424 held that a petition filed under Section 482, Cr.PC, for quashing an order summoning the accused is maintainable. There cannot be any doubt that once it is held that sine qua non for exercise of the power to issue summons is the subjective satisfaction “on the ground for proceeding further” while exercising the power to consider the legality of a summons issued by a Magistrate, certainly it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. In this context, we think it appropriate to state that one should understand that ‘taking cognizance’, empowered under Section 190, Cr.PC, and ‘issuing process’, empowered under Section 204, Cr.PC, are different and distinct. (See the decision in Sunil Bharti Mittal v. C.B.I.7).
15. In Sunil Bharti Mittal’s case (supra), this Court interpreted the expression “sufficient grounds for proceeding” and held that there should be sufficiency of materials against the accused concerned before (2015) 4 SCC 609 proceeding under Section 204, Cr.PC. It was held thus:-

“53. However, the words “sufficient ground for proceeding” appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.”

16. In the decision in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr.8, this Court held that the settled position for summoning of an accused is that the Court has to see the prima facie evidence. This Court went on to hold that the ‘prima facie evidence’ means the evidence sufficient for summoning the accused and not the evidence sufficient to warrant conviction. The inquiry under Section 202, Cr.PC, is limited only to ascertain whether on the material placed by the (2005) 8 SCC 89 complainant a prima facie case was made out for summoning the accused or not.
17. In an earlier decision in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.9, this Court laid down certain conditions whereunder a complaint can be quashed invoking the power under Section 482, Cr.PC, thus: –

“(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.” (1976) 3 SCC 736
18. Having understood the scope of interference with issuance of summons in exercise of power under Section 482, Cr.PC, we will move on to consider the question whether the impugned order justifies such interference or in other words, whether impugned order invites interference? We have briefly narrated the case revealed from the complaint and also taken note of the fact(s) that the High Court under the impugned judgment arrived at the finding that no material is available, suggesting instigation by the respondent No.2 in the suicide note and nothing indicative of occurrence of an incidence and utterance of words as mentioned by the complainant, were vividly stated or even alluded, therein. In view of the fact that summons was issued to the respondent No.2 to stand the trial for the offence under Section 306, IPC it is only apt to analyse the said Section to find out the ingredients to attract the same and also whether the complaint and the evidence collected during the inquiry and also during the investigation which resulted in the filing of the closure report prima facie discloses sufficient ground for proceeding and to issue summons to the respondent No.2 to face the trial for the offence under Section 306, IPC.

19. In the decision in M. Vijayakumar v. State of Tamil Nadu10, this Court considered Section 306, IPC and its co-relation with Section 107, IPC after referring to the decisions in M. Mohan v. State represented by the Deputy Superintendent of Police11, Madan Mohan Singh v. State of Gujarat & Anr.12, and Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)13. After analysing the provisions under Section 306, IPC with reference to ‘abetment’, as defined under Section 107, IPC and the decisions in M. Mohan’s case (supra), Madan Mohan Singh’s case (supra) and Chitresh Kumar Chopra’s case (supra) it was held that “in order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC,…” Thus, in view of the decision, it is clear that what matters in deciding the question 2024 SCC OnLine SC 238 (2011) 3 SCC 626 (2010) 8 SCC 628 (2009) 16 SCC 605 whether there is ground for proceeding against a particular person and to issue summons to him to face the trial for the offence under Section 306, IPC is whether the complaint and the materials collected during the inquiry/investigation prima facie disclose mens rea on the part of the accused to bring about suicide of the victim. This position of law and condition Nos. 1 and 2 in Smt. Nagawwa’s case (supra), extracted in paragraph 17 above, are to be borne in mind while considering the question whether a prima facie case of ‘abetment of suicide’ is made out against the respondent No.2. Obviously, the High Court held it in the negative under the impugned judgment. As per the complainant, who was examined before the learned Magistrate in the inquiry, the respondent No.2 by uttering the instigative words on 12.10.2004 (extracted hereinbefore) abetted his father to commit suicide. However, the impugned judgment would reveal that the High Court upon careful perusal of the suicide note found conspicuous absence of any reference, either explicitly or implicitly, in the suicide note regarding any such occurrence, as alleged by the complainant, on 12.10.2004 or anything suggesting that the respondent No.2 was conscious of the fact that the victim was bent upon to commit suicide in case of non-disbursement of salary and despite such knowledge he desisted disbursal of salary and instigated the victim to commit suicide.

20. As per the impugned judgment the High Court went on to consider and held thus:-

“As per mandate of this Section, there must be explicit or implicit abetment or some overt act indicative or suggestive of fact that some instigation was given for committing suicide and the applicant was having an interest in it. Nothing has surfaced, which may reflect on the mindset of the applicant that he ever intended the consequence that the deceased would commit suicide and with that view in mind, he stopped payment of salary. Had it been the actual position then obviously the suicide note must have whispered about that particular aspect or it would have at least alluded to that situation, but on careful perusal of the suicide note it explicit that the deceased himself was bent upon committing suicide in case the salary was not drawn in his favour. But under circumstances, there is nothing to suggest that the applicant was conscious of that position and knowing the same situation he insisted that he would not pay the salary in question. The trial court, however, ignoring all these legal aspects took cognizance of the offence by rejecting the final report submitted by the Investigating Officer and issued process against the applicant by  way of summoning. Resultantly, this application is allowed. Criminal proceedings of impugned order dated 05.04.2012 passed by Chief Judicial Magistrate, Shahjahanpur in Criminal Case No.1478 of 2012, Vikas Vs. Ram Babu, Case Crime No.C-2 of 2005, under Section 306 IPC, Police Station- Alhaganj, District Shahjahanpur by which the applicant has been summoned to face the trial is hereby quashed.”

21. Certain relevant and indisputable aspects revealed from the material on record are also to be noted, with reference to the relevant decisions, as under:

(i) There is no explicit or implicit reference about any occurrence on 12.10.2004 involving the deceased and the respondent No.2, as alleged in the complaint and as stated by the complainant in the inquiry, is made in the so-called suicide note dated 23.10.2004;
(ii) There is no proximity between the alleged occurrence of utterance of the so-called instigative words on 12.10.2004 and the commission of suicide by Brijesh Chander inasmuch as it was committed only on 23.10.2004.
The so-called suicide note did not refer to any such occurrence. If any such incident had, in  troth, occurred and if that was the reason which pushed him to commit suicide it would have been mentioned, explicitly or implicitly in the so-called suicide note, as rightly observed and held by the High Court. What makes it dubious and unfit for being formative foundation for prosecution for an offence under Section 306, IPC, will be dealt with a little later.

22. It is to be noted that apart from the above mentioned alleged incident, there is no allegation of continued course of conduct (against the respondent No.2) creating circumstances compelling the victim to or leaving the victim with no other option but to, commit suicide. In this contextual situation from the decision of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)14, paragraphs 16 and 17 therein dealing with the expression ‘instigation’ are worthy for reference and they read thus:-

“16…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 (2009) 16 SCC 605  consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.” “17.Thus, to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action;
provoke to action or reaction” (see Concise Oxford English Dictionary); “to keep irritating or annoying somebody until he reacts…” (emphasis in original)

23. In the decision in Ramesh Kumar v. State of Chhattisgarh15, this Court held that where the accused by his acts or continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an instigation may be inferred.

[(2001) 9 SCC 618]

24. Now, reverting to the so-called suicide note, we do not find any reason to interfere with its evaluation by the High Court, for reasons more than one. We have already noted the conspicuous absence of any reference about the alleged incident on 12.10.2004 involving the deceased and the respondent No.2, either explicitly or implicitly, therein. Before looking into and applying the principles enunciated for appreciation of a suicide note in the decisions of this Court in Netai Dutta v. State of West Bengal16 and Madan Mohan Singh’s case (supra), we will have a glance at the tenor of the suicide note. As observed and held by the High Court, the so-called suicide note would not reveal and reflect that the victim was disturbed on account of non-receipt of salary and for that reason, he was bent upon to commit suicide. Though it is stated that the respondent No.2 is responsible for his suicide however, there is absolute absence of any material or even a case in the complaint and in the so-called suicide note that the respondent No.2 has abetted late Brijesh Chandra in a manner that will attract the provisions under Section 107, IPC. There is absolute absence of any allegation of continued course of conduct on the part of the (2005) 2 SCC 659 respondent No.2 with a view to create circumstances leaving the deceased with no other option except to commit suicide. In such circumstances, the mere statement in suicide note dated 23.10.2004, ‘Shri Ram Babu Sharma, Secretary, Mandi Samiti, Puwaya will be responsible for his suicide’ would not be a ground at all to issue summons to the respondent No.2 to face the trial for the offence under Section 306, IPC. The principles enunciated in Madan Mohan Singh’s case (supra) and Netai Dutta’s case (supra), on application to the facts obtained in this case would also justify the interference by the High Court with the subject summons.
25. In the case on hand, the undisputable position is that at the time of the commission of suicide, the deceased was not working in the office of Mandi Samiti, Puwaya where the respondent No.2 was working as Secretary and when the former committed the suicide he was attached to the office of the Mandi Samiti, Jalalabad and was working in Sub-Mandi, Alhaganj.
26. In Madan Mohan Singh’s case (supra), the salary of the deceased, who was allegedly abetted to commit suicide, for 15 days was deducted by the accused. That apart, in that case also a suicide note was left by the deceased, which in so far as it is relevant was quoted in paragraph 7 of the said decision thus: –

“I am going to commit suicide due to his functioning style. Alone M.M. Singh, DET Microwave Project is responsible for my death. I pray humbly to the officers of the Department that you should not cooperate as human being to defend M.M. Singh. M.M. Singh has acted in breach of discipline disregarding the norms of discipline. I humbly request the enquiry officer that my wife and son may not be harassed. My life has been ruined by M.M. Singh”.

27. Paragraph 13 and 14 of the said judgment, in so far as they are relevant are also worthy to be extracted. They read thus: –

“13…… In fact, there is no nexus between the so- called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the  trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature…

14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him.
    The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.”
15. In Netai Dutta’s case (supra) from the dead body a suicide note was recovered and on its basis the police registered a case against the appellant under Section 306, IPC. Paragraphs 5, in so far as it is relevant, and 6 of the said decision read thus: –

“5. …An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of “abetment” have been stated in Section 107 of the Penal Code, 1860. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission. The Explanation to Section 107 says that any wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of “abetment”.

6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.”
7. In short, applying the principles of the decisions referred above to the facts of the case on hand would reveal that the impugned judgment of the High Court did not suffer from any legal infirmity, illegality or perversity and the conclusions are arrived at after a rightful appreciation of the complaint and the other materials on record, within the permissible parameters.
8. Considering the facts and circumstances of the case, we do not find anything warranting any interference by this Court. The appeal is, therefore, dismissed.

……………………,J.

(C.T. Ravikumar) ……………………,J.

(Rajesh Bindal) New Delhi;

February 22, 2024.