AMIT KAPOOR Vs RAMESH CHANDER
Bench: A.K. PATNAIK,SWATANTER KUMAR
Case number: Crl.A. No.-001407-001407 / 2012
Diary number: 35252 / 2009
Advocates: S. K. DHINGRA Vs
ANIL KATIYAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1407 OF 2012 (Arising out of SLP (Crl.) No.1516 of 2010)
Amit Kapoor ... Appellant
Versus
Ramesh Chander & Anr. ... Respondents
J U D G M E N T
Swatanter Kumar, J .
1. Leave granted.
2. A question of law that arises more often than not in criminal
cases is that of the extent and scope of the powers exercisable by
the High Court under Section 397 independently or read with
Section 482 of the Code of Criminal Procedure, 1973 (for short,
the ‘Code’).
3. The facts as they emerge from the record fall within a very
narrow compass. On 4th December, 2007, the Rajouri Garden
Police Station received information that a woman had committed
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suicide at C-224, Tagore Garden Extension, Delhi. Upon making
entry under DD No.16A of that date, Sub Inspector O.P. Mandal
commenced investigation and reached the place of occurrence.
The deceased was identified as Komal Kapoor. Her body was sent
for post mortem. The Investigating Officer recorded the statement
of her son Amit Kapoor and on 5.12.2007 at about 12.15 p.m. an
FIR was registered on the complaint filed by him. This FIR was
registered against Ramesh Chander Sibbal (the accused) and
another, on the basis of the statement of Amit Kapoor and the
suicide note. According to Amit Kapoor, he knew Ramesh
Chander Sibbal for the last 10 years. Father of Amit Kapoor was
running a paint brush business and had purchased property
No.C-225, Tagore Garden, Delhi through the said Ramesh
Chander Sibbal. Since the father of Amit Kapoor had fallen ill,
his mother was also looking after the business. However, the
family business suffered acute losses. The family discussed the
possibility of selling their moveable and immoveable property
situated at Rohini. The accused persons are stated to have
fraudulently obtained signatures of the deceased in this
connection. In order to get over the financial crises and to meet
their liabilities, the deceased had also discussed the possibility of
selling another plot owned by the family situated in Bawana
Industrial Area. At that time also, the accused told the deceased
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that certain documents have to be executed before the plot is
sold. On this pretext, he again got some papers signed by them.
The accused paid a sum of Rs.5,00,000/- to the deceased at the
first instance and thereafter a sum of Rs.3,00,000/- for the plot
situated in Bawana as against the market value of
Rs.28,00,000/-, with an assurance that the rest of the amount
will be paid after execution of the sale deed.
4. Around the time of Dussehra in 2007, the accused
approached the deceased claiming that he be given
accommodation on a temporary basis for a period of ten to twelve
days on the ground floor of her house situated at C-224, Tagore
Garden, Delhi on the pretext that his own house was under
renovation. The deceased believing him and keeping the
relationship in mind, agreed and allowed him to occupy two
rooms on the ground floor. It is alleged that while the deceased
was away at Haridwar, just before the festival of Diwali, the
accused encroached upon one more room in the said house.
When the deceased asked the accused to vacate the said
premises, he refused and, on the contrary, stated that he had
paid a sum of Rs.24,00,000/- and that it was his house. Not only
this, the accused as well as his son threatened the deceased and
her family to vacate the house or else they would ruin them. It is
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also alleged that when the deceased asked the accused as to when
she will get rid of this problem, he is said to have replied that she
could get rid of this only after her death. This was followed by the
accused sending a legal notice dated 1st December, 2007 to the
deceased which was received on 3rd December, 2007 in which
similar claim was made by the accused against the deceased. The
trust that she had placed upon the accused was totally betrayed
by him. This led to the deceased slipping into depression. In face
of all these circumstances, coupled with the threats extended by
the accused persons, the deceased committed suicide on
4.12.2007 at about 7.30 a.m. by hanging herself from a ceiling
fan, using a scarf (chunni). It may be noticed at this stage, that
the deceased had left a suicide note which can appropriately be
reproduced at this stage as under :
“This Ramesh Sibbal, his wife Suman and his son Gaurav.
I am committing suicide for the reason that the aforesaid persons who are residing in our house forcefully, used to say that he was to do white wash so please allow him to keep some of his articles. But after some time, when I came, I saw that the aforesaid person has completely occupied my house as his own house. When my children objected to his aforesaid act, he said that he was to stay there only for a period of 04 days and that he would perform Diwali worship pooja ceremony at his own house but he did not
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vacate the house. When I had gone to Haridwar, he occupied front room of my house as well after giving beatings to my children. I know this person since that day when he had got my plot of Rohini disposed off. As we both (husband and wife) had not read those papers (relating to disposal of our Rohini plot) so this person kept on obtaining our signatures on the stamp papers relating to our House No. C-224 on the pretext that these papers were required to execute the lease. My husband was ill and I used to remain busy in looking after him. Whenever, he came to us he used to show urgency in taking our signature by stating that the sale proceed of our plot would be given to us that day itself. He kept on giving payment time to time to us and we kept on receiving the same.
Written on the top of page 411
This man gave me only a sum of Rs 05 lacs of my plot situated in Bawana, but he obtained my signature on Rs 15 lacs as I did not read the contents thereof.
When this man got our Bawana a plot sold, he took the file from us but I do not know as to what he had done with that amount. He used to say that he had given us the entire amount. Whatever amount he gave to us he used to take in writing on a paper. After giving his amount, when I asked for the file, he demanded Rs.05 lacs otherwise, he would reveal it to my daughter that the file was lying with him. He also threatened me to sign the paper without raising any objection otherwise, he would get our children grandson and granddaughter kidnapped. On this, I used to scare and this man used to succeed in getting the stamp papers signed by me. When he got our plot of Rohini sold, he started obtaining my signatures. But at
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the time when the plot of Rohini was sold, he told me that the plot situated in Bawana has been sold and he asked us to accompany him to sign the papers. Thereafter, he said that the person with whom he has kept the file was saying to him that he could take away the file from that person but only in lieu of keeping papers of some other house with that person. When this man (suggested) me to keep other file (of property) in lieu of taking the said file from that person and this man (also assured me) that he would return those papers of property to me as and when the plot of Bawana would be sold. On this, I handed over the file of property No. C-225 to this man. After that, he told that the plot was not getting higher price and so he offered us to take some amount, if required by us urgently whereupon , this man gave us a sum of Rs. 3 lacs but he kept on taking an interest at the rate of 10%. This man gave us Rs.5 lacs earlier and Rs.3 lacs later so he kept on taking an interest on Rs. 8 lacs. Before Diwali, I gave him a cheque of Rs.2,50,000/- and also gave a sum of Rs.3 lacs in cash to his son. Thereafter, I gave a sum of Rs.2 lacs in cash and his son knows the account of it whose name is Gaurav. When I gave money, I asked him to give me the written paper as I have returned the as I have returned the money whereupon, he (Gaurav) said that since he had no paper with him that time so the same would be returned to her by his father. This man’s son Gaurav and wife Suman are together involved (in this conspiracy). His son also used to do my fake signatures. Whenever, I demanded my file back from him, he used to ask me to return Rs.15 lacs first. On this, when I asked him as to how the amount of Rs.5 lacs became to Rs.15 lacs? He replied that it had become Rs.15 lacs including interest thereon. I kept on giving him interest because of the fear of my family. He has also grabbed my entire money which I had taken on loan basis
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from somewhere. I kept on giving him interest only for the reason that since he used to promise me to return the papers that day itself or on the next day.
Written on top of page no.415
He said that the money of Bawana’s (plot) has been sent by his father and he asked me to write down a receipt of Rs.04 lacs and when I wrote a receipt of it, he said that the money was kept in the motorcycle and he was first giving me the cash but this man’s son did not give me the said cash. He asked me to sign the papers related to Bawana’s (plot) first and then he would return the paper as well as the money to me. On reaching the house, I demanded the money and paper from him whereupon he said that he had the paper written by me and that he would show that paper to my son and when my son asked him to return the paper, he replied that he would not return the paper as his mother had taken a sum of Rs.15 lacs from him. Kindly take it guaranteed that out of aforesaid Rs.15 lacs I have returned a sum of Rs. of Seven and a half lacs to him. After that, this man’s son came to me and said that his father was saying to give papers of property No.C-225 to you and in lieu thereof he asked me to show him the file of lease. On this, when I started to show him the said file to him then, this man’s son Gaurav said that he was just giving me the said paper and saying this he took away the lease file from me and since then, he had not returned me the said paper. Kindly save my house. Please save my children from this person. I have not visited any court to sign. One day these persons crossed all the limits when his wife said that she was agreed to return all the papers in lieu of giving a receipt of the same in writing. After that, they gave me the amount of sale proceeds of Rohini and Bawana’s properties.
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She brought fake papers which were related to some other person’s property, to me. I saw that those papers were fake papers and were in English language and when I showed those papers to someone, it was found that those papers were not related to my plot. When I went to this man’s house to show him that those papers were not related to my plot, his wife said that since there was no electricity in her house that time so they had given some others property paper to her mistakenly and that they were just sending their son Gaurav to give me the correct papers but Gaurav did not come to me till today. Thereafter, we started receiving threats from Gunda elements that they would harm us in different ways. I have no proof of the money returned by me. This man used to say to my female friends that he would show them after purchasing my house by hook and crook. He used to spread rumour in the street that I, Komal have sold out my house to him and that there were several cases pending related to that house.
I pray, with folded hands, that keeping in view the illness of my husband, my house and the papers related thereto may please be restored to me. This man’s wife Suman and their son Gaurav are most dishonest persons. His wife Suman used to talk in such an artificial way as she was telling a truth. One of my sons had died due to cancer and if I am dishonest to anyone, my rest of both children may also die from cancer. You can verify these facts from the residents of the street as to how many houses (families) has been ruined by this person. This man is supported by some reputed persons who use to give him money but he did not return their money. He kept on keeping papers of our property with him and used to lend our money on interest to other persons. This man intends to grab my house. My matter may please be decided. This man Ramesh
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Sibbal, his wife Suman and son Gaurav may be punished so that they may not commit such an act with anyone in future. He kept on threatening me while involving my daughter-in-law that he would do this and that. Since the day this man entered my house, everything has been ruined by him. I may please be imparted justice.
Sd/- Komal Kapur
(In English)”
5. The Investigating Officer prepared the site plan, effected
recoveries of the articles from the place of occurrence and
thereafter recorded the statements of the witnesses. Upon
completion of the investigation, a charge sheet was filed in terms
of Section 173(2) of the Code wherein Ramesh Chander Sibbal
was stated as the accused and names of his wife, Suman Sibbal
and son Gaurav Sibbal were shown in Column No.2. Upon
committal, the learned Additional Sessions Judge framed charges
against the accused under Sections 306 and 448 of the Indian
Penal Code, 1860 (IPC).
6. The accused filed a criminal revision being Criminal Revision
No.227 of 2009 in the High Court of Delhi at New Delhi
challenging the order of the trial Court dated 2nd April, 2009,
framing the charge. The High Court vide its judgment dated 13th
August, 2009 quashed the charge framed under Section 306 IPC,
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while permitting the Trial Court to continue the trial in relation to
the offence under Section 448 IPC. It will be useful to refer to
certain findings recorded by the High Court in its judgment dated
13th August, 2009 :
“3. In the background of the aforesaid case set up by the prosecution the learned counsel for the petitioner submitted that the ingredients of an offence under Section 306 of the IPC were not present in the instant case. As a matter of fact the learned counsel for the petitioner went further to say that this is not a case of suicide, rather is, a case of homicide. For this purpose he took me through the post mortem report and also the literature (Pathology of Neck Injury by Peter Venezis). On being told that since the trial was on and hence, the learned counsel decided to give up the arguments initially advanced on this aspect of the matter.
3.1 As regards whether a charge could be framed under Section 306 of the IPC, the upshot of his submissions was that even if the entire material/evidence placed on record by the prosecution is fully accepted to be correct, no offence under Section 306 of the IPC is made out against the petitioner accused. For this purpose the learned counsel for the petitioner took me through the suicide note dated 04.12.2007, the statement of the sons of the deceased Amit Kapoor (the complainant) and Sumit Kapoor, as well as, the report of the Forensic Science Laboratory. It was his submission that merely because the petitioner-accused is
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named in the suicide note and has been referred to as the reason which propelled the deceased to take the extreme step of suicide, it would still not fall within the realm of Section 306 of the IPC.
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g. a perusal of the suicide note brings to fore the fact the petitioner-accused is not only named but his illegal occupation of the house of the deceased is stated to be one of the primary reasons for Kamol Kapoor, to have committed suicide. The statement of the sons of the deceased, Amit Kapoor and Sumit Kapoor, is primarily on the same lines. The issue for consideration is that, even if it is assumed at this stage, that the suicide note was written in the hand writing of the deceased and the statement of Amit Kapoor is believed to be true in its entirety would it be sufficient to charge the petitioner-accused with the offence of abetment of suicide by Komal Kapoor. In my view the answer is in the negative. The mere fact that the actions of the petitioner-accused, that is, forcible occupation of the portion of the house of the deceased, led her to take the extreme step of committing suicide would not bring his act within the definition of abetment as there is no material or evidence placed by the prosecution on record to show that he intended or had the necessary mens rea that the Komal Kapoor should take the extreme step of committing suicide. As long as there is absence of material and/or evidence on record to show that the abettor had intended to aid or encourage the commission of the
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principal offence, the accused cannot be charged with the offence of abetment and, therefore, in the present case, abetment to commit suicide. Nor I am persuaded by the submission that because the name of the petioner- accused appears in the suicide note it would be sufficient to charge him with an offence under Section 306 of the IPC. In this context see observation in Sanju @ Sanjay Singh Senger (supra) and Mahender Singh (supra). In both the cases not ony was the accused named in the suicide note but they were also cited as the reason for committing suicide by the deceased. The learned APP may perhaps be correct in his submission that the agreement to sell dated 30.06.2007 was executed by the petitioner- accused, only to grab the property of the deceased after a receipt had been executed by the deceased acknowledging that she had taken a loan from the petitioner-accused in the first instance in the sum of Rs.15 lacs and thereafter, another sum of Rs. 1 lac, but then, this aspect of the matter will get unravelled only after a full- fledged trial. I do not wish to comment any further on this aspect of the matter as it could impact both, the case of the prosecution as well as that of the defence, and perhaps wisely, therefore, even the learned counsel or the petitioner-accused has not assailed the charge framed under Section 448 of the IPC.
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12. For the aforementioned reasons, I am of the opinion that it is a fit case in which this Court should exercise its
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revisional and inherent powers to quash the charge framed against the petitioner accused under Section 306 of the IPC. The revision petition is thus partially allowed. The charge framed against the petitioner-accused under Section 306 of the IPC shall be dropped. The trial court will continue with the trial of the petitioner-accused in respect of the remaining charge framed against him.”
7. Aggrieved from the judgment of the High Court, in the
present appeal, the appellant impugnes the same primarily on the
ground that the High Court had exceeded and not appropriately
exercised its jurisdiction under Sections 397 and 482 of the Code
in quashing the charge framed against the respondent under
Section 306 IPC.
8. Before examining the merits of the present case, we must
advert to the discussion as to the ambit and scope of the power
which the courts including the High Court can exercise under
Section 397 and Section 482 of the Code. Section 397 of the Code
vests the court with the power to call for and examine the records
of an inferior court for the purposes of satisfying itself as to the
legality and regularity of any proceedings or order made in a case.
The object of this provision is 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 appropriate for the court to scrutinize the
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orders, which upon the face of it bears a token of careful
consideration and appear to be in accordance with law. If one
looks into the various judgments of this Court, it emerges that the
revisional jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes, but
are merely indicative. Each case would have to be determined on
its own merits.
9. Another well-accepted norm is that the revisional jurisdiction
of the higher court is a very limited one and cannot be exercised
in a routine manner. One of the inbuilt restrictions is that it
should not be against an interim or interlocutory order. The
Court has to keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given case,
it may be reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much
advanced stage in the proceedings under the Cr.P.C. Right from
the case of State of West Bengal & Ors. v. Swapan Kumar Guha &
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Ors. [(1982) 1 SCC 561], which was reiterated with approval in
the case of State of Haryana & Ors. v. Bhajan Lal & Ors. [1992
Supp. (1) SCC 335], the courts have stated the principle that if
the FIR does not disclose the commission of a cognizable offence,
the Court would be justified in quashing the investigation on the
basis of the information as laid or received. It is further stated
that the legal position appears to be that if an offence is disclosed,
the court will not normally interfere with an investigation into the
case and will permit investigation into the offence alleged to have
been committed; if, however, the materials do not disclose an
offence, no investigation should normally be permitted. Whether
an offence has been disclosed or not, must necessarily depend on
the facts and circumstances of each case. If on consideration of
the relevant materials, the Court is satisfied that an offence is
disclosed, it will normally not interfere with the investigation into
the offence and will generally allow the investigation into the
offence to be completed in order to collect materials for proving
the offence. In Bhajan Lal’s case (supra), the Court also stated
that though it may not be possible to lay down any precise, clearly
defined, sufficiently channelized and inflexible guidelines or rigid
formulae or to give an exhaustive list of myriad kinds of cases
wherein power under Section 482 of the Code for quashing of an
FIR should be exercised, there are circumstances where the Court
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may be justified in exercising such jurisdiction. These are, where
the FIR does not prima facie constitute any offence, does not
disclose a cognizable offence justifying investigation by the police;
where the allegations are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against
the accused; where there is an expressed legal bar engrafted in
any of the provisions of the Code; and where a criminal
proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him
due to private and personal grudge. Despite stating these
grounds, the Court unambiguously uttered a note of caution to
the effect that power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that too, in
the rarest of rare cases; the Court also warned that the Court
would not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in
the FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice.
10. The above-stated principles clearly show that inherent as
well as revisional jurisdiction should be exercised cautiously. If
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the jurisdiction under Section 482 of the Code in relation to
quashing of an FIR is circumscribed by the factum and caution
afore-noticed, in that event, the revisional jurisdiction,
particularly while dealing with framing of a charge, has to be even
more limited. Framing of a charge is an exercise of jurisdiction by
the trial court in terms of Section 228 of the Code, unless the
accused is discharged under Section 227 of the Code. Under both
these provisions, the court is required to consider the ‘record of
the case’ and documents submitted therewith and, after hearing
the parties, may either discharge the accused or where it appears
to the court and in its opinion there is ground for presuming that
the accused has committed an offence , it shall frame the charge.
Once the facts and ingredients of the Section exists, then the
Court would be right in presuming that there is ground to proceed
against the accused and frame the charge accordingly. This
presumption is not a presumption of law as such. The
satisfaction of the court in relation to the existence of constituents
of an offence and the facts leading to that offence is a sine qua
non for exercise of such jurisdiction. It may even be weaker than
a prima facie case. There is a fine distinction between the
language of Sections 227 and 228 of the Code. Section 227 is
expression of a definite opinion and judgment of the Court while
Section 228 is tentative. Thus, to say that at the stage of framing
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of charge, the Court should form an opinion that the accused is
certainly guilty of committing an offence, is an approach which is
impermissible in terms of Section 228 of the Code. It may also be
noticed that the revisional jurisdiction exercised by the High
Court is in a way final and no inter court remedy is available in
such cases. Of course, it may be subject to jurisdiction of this
court under Article 136 of the Constitution of India. Normally, a
revisional jurisdiction should be exercised on a question of law.
However, when factual appreciation is involved, then it must find
place in the class of cases resulting in a perverse finding.
Basically, the power is required to be exercised so that justice is
done and there is no abuse of power by the court. Merely an
apprehension or suspicion of the same would not be a sufficient
ground for interference in such cases.
11. At the initial stage of framing of a charge, the court is
concerned not with proof but with a strong suspicion that the
accused has committed an offence, which, if put to trial, could
prove him guilty. All that the court has to see is that the material
on record and the facts would be compatible with the innocence of
the accused or not. The final test of guilt is not to be applied at
that stage. We may refer to the well settled law laid down by this
Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC
39:
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“4. Under Section 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 Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 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 Section 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 Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the
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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. It 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, 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”
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12. The jurisdiction of the Court under Section 397 can be
exercised so as to examine the correctness, legality or proprietary
of an order passed by the trial court or the inferior court, as the
case may be. Though the section does not specifically use the
expression ‘prevent abuse of process of any court or otherwise to
secure the ends of justice’, the jurisdiction under Section 397 is a
very limited one. The legality, proprietary or correctness of an
order passed by a court is the very foundation of exercise of
jurisdiction under Section 397 but ultimately it also requires
justice to be done. The jurisdiction could be exercised where
there is palpable error, non-compliance with the provisions of law,
the decision is completely erroneous or where the judicial
discretion is exercised arbitrarily. On the other hand, Section 482
is based upon the maxim quando lex liquid alicuiconcedit, conceder
videtur id quo res ipsa esse non protest, i.e., when the law gives
anything to anyone, it also gives all those things without which
the thing itself would be unavoidable. The Section confers very
wide power on the Court to do justice and to ensure that the
process of the Court is not permitted to be abused.
13. It may be somewhat necessary to have a comparative
examination of the powers exercisable by the Court under these
two provisions. There may be some overlapping between these
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two powers because both are aimed at securing the ends of justice
and both have an element of discretion. But, at the same time,
inherent power under Section 482 of the Code being an
extraordinary and residuary power, it is inapplicable in regard to
matters which are specifically provided for under other provisions
of the Code. To put it simply, normally the court may not invoke
its power under Section 482 of the Code where a party could have
availed of the remedy available under Section 397 of the Code
itself. The inherent powers under Section 482 of the Code are of a
wide magnitude and are not as limited as the power under Section
397. Section 482 can be invoked where the order in question is
neither an interlocutory order within the meaning of Section
397(2) nor a final order in the strict sense. Reference in this
regard can be made to Raj Kapoor & Ors. v. State of Punjab & Ors.
[AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this
Court has observed that inherent power under Section 482 may
not be exercised if the bar under Sections 397(2) and 397(3)
applies, except in extraordinary situations, to prevent abuse of
the process of the Court. This itself shows the fine distinction
between the powers exercisable by the Court under these two
provisions. In this very case, the Court also considered as to
whether the inherent powers of the High Court under Section 482
stand repelled when the revisional power under Section 397
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overlaps. Rejecting the argument, the Court said that the opening
words of Section 482 contradict this contention because nothing
in the Code, not even Section 397, can affect the amplitude of the
inherent powers preserved in so many terms by the language of
Section 482. There is no total ban on the exercise of inherent
powers where abuse of the process of the Court or any other
extraordinary situation invites the court’s jurisdiction. The
limitation is self-restraint, nothing more. The distinction between
a final and interlocutory order is well known in law. The orders
which will be free from the bar of Section 397(2) would be the
orders which are not purely interlocutory but, at the same time,
are less than a final disposal. They should be the orders which do
determine some right and still are not finally rendering the Court
functus officio of the lis. The provisions of Section 482 are
pervasive. It should not subvert legal interdicts written into the
same Code but, however, inherent powers of the Court
unquestionably have to be read and construed as free of
restriction.
14. In Dinesh Dutt Joshi v. State of Rajasthan & Anr. [(2001) 8
SCC 570], the Court held that Section 482 does not confer any
power but only declares that the High Court possesses inherent
powers for the purposes specified in the Section. As lacunae are
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sometimes found in procedural law, the Section has been
embodied to cover such lacunae wherever they are discovered.
The use of extraordinary powers conferred upon the High Court
under this section are, however, required to be reserved as far as
possible for extraordinary cases.
15. In Janata Dal v. H.S. Chowdhary & Ors. [(1992) 4 SCC 305],
the Court, while referring to the inherent powers to make orders
as may be necessary for the ends of justice, clarified that such
power has to be exercise in appropriate cases ex debito justitiae,
i.e. to do real and substantial justice for administration of which
alone, the courts exist. The powers possessed by the High Court
under Section 482 of the Code are very wide and the very
plenitude of the powers requires a great caution in its exercise.
The High Court, as the highest court exercising criminal
jurisdiction in a State, has inherent powers to make any order for
the purposes of securing the ends of justice. Being an extra
ordinary power, it will, however, not be pressed in aid except for
remedying a flagrant abuse by a subordinate court of its powers.
16. If one looks at the development of law in relation to exercise
of inherent powers under the Code, it will be useful to refer to the
following details :
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As far back as in 1926, a Division bench of this Court In Re:
Llewelyn Evans, took the view that the provisions of Section 561A
(equivalent to present Section 482) extend to cases not only of a
person accused of an offence in a criminal court, but to the cases
of any person against whom proceedings are instituted under the
Code in any Court. Explaining the word “process”, the Court said
that it was a general word, meaning in effect anything done by the
Court. Explaining the limitations and scope of Section 561A, the
Court referred to “inherent jurisdiction”, “to prevent abuse of
process” and “to secure the ends of justice” which are terms
incapable of having a precise definition or enumeration, and
capable, at the most, of test, according to well-established
principles of criminal jurisprudence. The ends of justice are to be
understood by ascertainment of the truth as to the facts on
balance of evidence on each side. With reference to the facts of
the case, the Court held that in the absence of any other method,
it has no choice left in the application of the Section except, such
tests subject to the caution to be exercised in the use of inherent
jurisdiction and the avoidance of interference in details and
directed providing of a legal practitioner.
17. Having examined the inter-relationship of these two very
significant provisions of the Code, let us now examine the scope of
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interference under any of these provisions in relation to quashing
the charge. We have already indicated above that framing of
charge is the first major step in a criminal trial where the Court is
expected to apply its mind to the entire record and documents
placed therewith before the Court. Taking cognizance of an
offence has been stated to necessitate an application of mind by
the Court but framing of charge is a major event where the Court
considers the possibility of discharging the accused of the offence
with which he is charged or requiring the accused to face trial.
There are different categories of cases where the Court may not
proceed with the trial and may discharge the accused or pass
such other orders as may be necessary keeping in view the facts
of a given case. In a case where, upon considering the record of
the case and documents submitted before it, the Court finds that
no offence is made out or there is a legal bar to such prosecution
under the provisions of the Code or any other law for the time
being in force and there is a bar and there exists no ground to
proceed against the accused, the Court may discharge the
accused. There can be cases where such record reveals the
matter to be so predominantly of a civil nature that it
neither leaves any scope for an element of criminality nor does it
satisfy the ingredients of a criminal offence with which the
accused is charged. In such cases, the Court may discharge him
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or quash the proceedings in exercise of its powers under these two
provisions.
18. This further raises a question as to the wrongs which
become actionable in accordance with law. It may be purely a
civil wrong or purely a criminal offence or a civil wrong as also a
criminal offence constituting both on the same set of facts. But if
the records disclose commission of a criminal offence and the
ingredients of the offence are satisfied, then such criminal
proceedings cannot be quashed merely because a civil wrong has
also been committed. The power cannot be invoked to stifle or
scuttle a legitimate prosecution. The factual foundation and
ingredients of an offence being satisfied, the Court will not either
dismiss a complaint or quash such proceedings in exercise of its
inherent or original jurisdiction. In the case of Indian Oil
Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736], this
Court took the similar view and upheld the order of the High
Court declining to quash the criminal proceedings because a civil
contract between the parties was pending.
19. Having discussed the scope of jurisdiction under these two
provisions, i.e., Section 397 and Section 482 of the Code and the
fine line of jurisdictional distinction, now it will be appropriate for
us to enlist the principles with reference to which the courts
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should exercise such jurisdiction. However, it is not only difficult
but is inherently impossible to state with precision such
principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of jurisdiction,
particularly, with regard to quashing of charge either in exercise
of jurisdiction under Section 397 or Section 482 of the Code or
together, as the case may be :
1) Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more
due care and caution is to be exercised in invoking these
powers. The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section 228 of
the Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
2) The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the
case and the documents submitted therewith prima facie
establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no prudent
person can ever reach such a conclusion and where the
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basic ingredients of a criminal offence are not satisfied then
the Court may interfere.
3) The High Court should not unduly interfere. No meticulous
examination of the evidence is needed for considering
whether the case would end in conviction or not at the
stage of framing of charge or quashing of charge.
4) Where the exercise of such power is absolutely essential to
prevent patent miscarriage of justice and for correcting
some grave error that might be committed by the
subordinate courts even in such cases, the High Court
should be loathe to interfere, at the threshold, to throttle
the prosecution in exercise of its inherent powers.
5) Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the
very initiation or institution and continuance of such
criminal proceedings, such a bar is intended to provide
specific protection to an accused.
6) The Court has a duty to balance the freedom of a person
and the right of the complainant or prosecution to
investigate and prosecute the offender.
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7) The process of the Court cannot be permitted to be used for
an oblique or ultimate/ulterior purpose.
8) Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly
give rise and constitute a ‘civil wrong’ with no ‘element of
criminality’ and does not satisfy the basic ingredients of a
criminal offence, the Court may be justified in quashing the
charge. Even in such cases, the Court would not embark
upon the critical analysis of the evidence.
9) Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction, the Court is concerned primarily with the
allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court
leading to injustice.
10) It is neither necessary nor is the court called upon to hold a
full-fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case of
acquittal or conviction.
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11) Where allegations give rise to a civil claim and also amount
to an offence, merely because a civil claim is maintainable,
does not mean that a criminal complaint cannot be
maintained.
12) In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or
that there was possibility of his acquittal. The Court has to
consider the record and documents annexed with by the
prosecution.
13) Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that
initial stage. The Court is not expected to marshal the
records with a view to decide admissibility and reliability of
the documents or records but is an opinion formed prima
facie.
14) Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court
may be well within its jurisdiction to frame a charge.
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15) Coupled with any or all of the above, where the Court finds
that it would amount to abuse of process of the Code or
that interest of justice favours, otherwise it may quash the
charge. The power is to be exercised ex debito justitiae, i.e.
to do real and substantial justice for administration of
which alone, the courts exist.
{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
20. These are the principles which individually and preferably
cumulatively (one or more) be taken into consideration as
precepts to exercise of extraordinary and wide plenitude and
jurisdiction under Section 482 of the Code by the High Court.
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Where the factual foundation for an offence has been laid down,
the courts should be reluctant and should not hasten to quash
the proceedings even on the premise that one or two ingredients
have not been stated or do not appear to be satisfied if there is
substantial compliance to the requirements of the offence. At this
stage, we may also notice that the principle stated by this Court
in the case of Madhavrao Jiwaji Rao Scindia (supra) was
reconsidered and explained in two subsequent judgments of this
Court in the cases of State of Bihar & Anr. v. Shri P.P. Sharma &
Anr. [AIR 1991 SC 1260] and M.N. Damani v. S.K. Sinha & Ors.
[AIR 2001 SC 2037]. In the subsequent judgment, the Court held
that, that judgment did not declare a law of universal application
and what was the principle relating to disputes involving cases of
a predominantly civil nature with or without criminal intent.
21. In light of the above principles, now if we examine the
findings recorded by the High Court, then it is evident that what
weighed with the High Court was that firstly it was an abuse of
the process of court and, secondly, it was a case of civil nature
and that the facts, as stated, would not constitute an offence
under Section 306 read with Section 107 IPC. Interestingly and
as is evident from the findings recorded by the High Court
reproduced supra that ‘this aspect of the matter will get
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unravelled only after a full-fledged trial’, once the High Court itself
was of the opinion that clear facts and correctness of the
allegations made can be examined only upon full trial, where was
the need for the Court to quash the charge under Section 306 at
that stage. Framing of charge is a kind of tentative view that the
trial court forms in terms of Section 228 which is subject to final
culmination of the proceedings.
22. We have already noticed that the legislature in its wisdom
has used the expression ‘there is ground for presuming that the
accused has committed an offence’. This has an inbuilt element
of presumption once the ingredients of an offence with reference
to the allegations made are satisfied, the Court would not doubt
the case of the prosecution unduly and extend its jurisdiction to
quash the charge in haste. A Bench of this Court in the case of
State of Maharashtra v. Som Nath Thapa & Ors. [(1996) 4 SCC 659]
referred to the meaning of the word ‘presume’ while relying upon
the Black’s Law Dictionary. It was defined to mean ‘to believe or
accept upon probable evidence’; ‘to take as proved until evidence
to the contrary is forthcoming’. In other words, the truth of the
matter has to come out when the prosecution evidence is led, the
witnesses are cross-examined by the defence, the incriminating
material and evidence is put to the accused in terms of Section
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313 of the Code and then the accused is provided an opportunity
to lead defence, if any. It is only upon completion of such steps
that the trial concludes with the court forming its final opinion
and delivering its judgment. Merely because there was civil
transaction between the parties would not by itself alter the
status of the allegations constituting the criminal offence. This
was not a case where the allegations were so predominately of a
civil nature that it would have eliminated criminal intent and
liability. On the contrary, it is a fact and, in fact, is not even
disputed that the deceased committed suicide and left a suicide
note. May be, the accused are able to prove their non-
involvement in inducing or creating circumstances which
compelled the deceased to commit suicide but that again is a
matter of trial. The ingredients of Section 306 are that a person
commits suicide and somebody alone abets commission of such
suicide which renders him liable for punishment. Both these
ingredients appear to exist in the present case in terms of the
language of Section 228 of the Code, subject to trial. The
deceased committed suicide and as per the suicide note left by
her and the statement of her son, the abetment by the accused
cannot be ruled out at this stage, but is obviously subject to the
final view that the court may take upon trial. One very serious
averment that was made in the suicide note was that the
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deceased was totally frustrated when the accused persons took
possession of the ground floor of her property, C-224, Tagore
Garden, Delhi and refused to vacate the same. It is possible and
if the Court believes the version given by the prosecution and
finds that there was actual sale of property in favour of the
accused, as alleged by him, in that event, the Court may acquit
them of not only the offence under Section 306 IPC but under
Section 107 IPC also. There appears to be some contradiction in
the judgment of the High Court primarily for the reason that if
charge under Section 306 is to be quashed and the accused is not
to be put to trial for this offence, then where would be the
question of trying them for an offence of criminal trespass in
terms of Section 448 IPC based on some facts, which has been
permitted by the High Court.
23. The High Court could not have appreciated or evaluated the
record and documents filed with it. It was not the stage. The
Court ought to have examined if the case falls in any of the above-
stated categories.
24. The High Court has also noticed that perusal of the suicide
note brings to fore the fact that the petitioner-accused is not only
named but his illegal occupation of the house of the deceased is
stated to be one of the primary reasons for Komal Kapoor in
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committing the suicide. The statement of the son of the deceased
is also on the same line. Then the High Court proceeds further to
notice that even if it is assumed at this stage that the suicide note
and statement were correct, the action of the petitioner-accused
in forcibly occupying the portion of the house of the deceased and
the deceased taking the extreme step would not bring his act
within the definition of abetment, as there is no material or
evidence placed by the prosecution on record. This finding could
hardly be recorded without travelling into the merits of the case
and appreciating the evidence. The Court could pronounce
whether the offence falls within the ambit and scope of Section
306 IPC or not. These documents clearly show that the accused
persons had brought in existence the circumstances which, as
claimed by the prosecution, led to the extreme step of suicide
being taken by the deceased. It cannot be equated to inflictment
of cruelty as discussed by the High Court in its judgment. Once
Sections 107 and 306 IPC are read together, then the Court has
to merely examine as to whether apparently the person could be
termed as causing abetment of a thing. An abetter under Section
108 is a person who abets an offence. It includes both the person
who abets either the commission of an offence or the commission
of an act which would be an offence. In terms of Section 107 IPC,
Explanation (1) to Section 107 has been worded very widely. We
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may refer to the judgment of this Court in the case of Goura
Venkata Reddy v. State of A.P. [(2003) 12 SCC 469], wherein this
Court held as under :
“8. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. “Act abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In the instant case, the abetted persons have been convicted for commission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted.”
25. A wilful misrepresentation or wilful concealment of material
fact and such person voluntarily causing or procuring or
attempting to cause or procure a thing to be done is said to
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instigate the doing of that thing. According to the record, the
accused had made a wrong statement that he had paid a sum of
Rs.24,00,000/- for purchase of the property C-224, Tagore
Garden, Delhi and the property belonged to him. Whether it was
a misrepresentation of the accused and was an attempt to harass
the deceased and her family which ultimately led to her suicide is
a question to be examined by the Court. The allegations as made
in the afore-stated documents clearly reflects that blank
documents were got signed, but the purpose, the consideration
and complete facts relating to the transaction were not disclosed
to the deceased or the family. This would, at least at this stage,
not be a case for examining the correctness or otherwise of these
statements as these allegations cannot be said to be ex facie
perverse, untenable or malicious. It would have been more
appropriate exercise of jurisdiction by the High Court, if it would
have left the matter to be determined by the Court upon complete
trial. May be the accused would be entitled to get some benefits,
but this is not the stage. These are matters, though of some civil
nature, but are so intricately connected with criminal nature and
have elements of criminality that they cannot fall in the kind of
cases which have been stated by us above. There, the case has to
be entirely of a civil nature involving no element of criminality.
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26. The learned counsel appearing for the appellant has relied
upon the judgment of this Court in the case of Chitresh Kumar
Chopra v. State (Government of NCT of Delhi) [(2009) 16 SCC 605]
to contend that the offence under Section 306 read with Section
107 IPC is completely made out against the accused. It is not the
stage for us to consider or evaluate or marshal the records for the
purposes of determining whether offence under these provisions
has been committed or not. It is a tentative view that the Court
forms on the basis of record and documents annexed therewith.
No doubt that the word ‘instigate’ used in Section 107 of the IPC
has been explained by this Court in the case of Ramesh Kumar v.
State of Chhattisgarh [(2001) 9 SCC 618] to say that where the
accused had, by his acts or omissions or by a continued course of
conduct, created such circumstances that the deceased was left
with no other option except to commit suicide, an instigation may
have to be inferred. In other words, instigation has to be gathered
from the circumstances of the case. All cases may not be of direct
evidence in regard to instigation having a direct nexus to the
suicide. There could be cases where the circumstances created
by the accused are such that a person feels totally frustrated and
finds it difficult to continue existence. Husband of the deceased
was a paralysed person. They were in financial crises. They had
sold their property. They had great faith in the accused and were
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heavily relying on him as their property transactions were
transacted through the accused itself. Grabbing of the property,
as alleged in the suicide note and the statement made by the son
of the deceased as well as getting blank papers signed and not
giving monies due to them are the circumstances stated to have
led to the suicide of the deceased. The Court is not expected to
form even a firm opinion at this stage but a tentative view that
would evoke the presumption referred to under Section 228 of the
Code.
27. Thus, we are of the considered view that the finding returned
by the High Court suffers from an error of law. It has delved into
the field of appreciation and evaluation of the evidence which is
beyond the jurisdiction, either revisional or inherent, of the High
Court under Sections 397 and 482 of the Code.
28. For the reasons afore-recorded, this appeal is allowed. The
order of the High Court is set aside. The trial Court shall proceed
with the trial in accordance with law, uninfluenced in any way
whatsoever from what has been recorded in this judgment.
Charge against the accused under Section 306 read with Section
107 and Section 448 IPC are found to be in order.
…….…………................J.
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(A.K. Patnaik)
...….…………................J. (Swatanter Kumar)
New Delhi; September 13, 2012.
42