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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2086 OF 2014

State of Kerala and Others Appellants

Versus

S. Unnikrishnan Nair and Others Respondents

J U D G M E N T  

Dipak Misra, J.

The seminal question that emerges for consideration in

this  appeal  is  whether  the  High  Court  of  Kerala  at

Ernakulam, is justified in quashing the F.I.R. lodged against

the respondents for the offences punishable under Sections

182, 194, 195, 195A and 306 of the Indian Penal Code in

exercise  of  jurisdiction under  Section 482 of  the  Code of

Criminal  Procedure  by  the  impugned  order  dated  14th

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December, 2012.

2. At  the outset,  we must state that Mr.  L.  Nageshwar

Rao,  learned  senior  counsel  appearing  for  the  State  has

submitted  that  there  is  no  grievance  as  far  as  the

quashment of the offences punishable under Sections 182,

194, 195, 195A I.P.C. is concerned.  Therefore, the central

challenge  pertains  to  quashing  of  the  offence  punishable

under Section 306 I.P.C.

3. The  facts  in  detail  need  not  be  stated,  for  the

controversy really lies in a narrow compass.  As the factual

matrix would unfurl, one Sampath was alleged to have been

beaten  to  death  by  the  investigating  agency,  that  is,  the

State  police,  while  he  was  in  custody.  His  brother,

Murukeshan,  preferred  W.P.(C)  No.13426  of  2010  and

during  the  pendency  of  the  writ  petition,  he  filed  I.A.

No.16944 of 2010.  His prayer was basically for issuance of

a direction to the Director, Central Bureau of Investigation

(C.B.I.)  to  submit  a  detailed  report  regarding  the

investigation so far conducted and production of the entire

case diary.  As is manifest, he was not satisfied with the

investigation conducted by the State police and his prayer

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was for better and more rigorous investigation.  Be it noted,

the High Court by an earlier order had directed the C.B.I. to

investigate  as  there  were  certain  allegations  against  the

State police.   

4. While  dealing with the interlocutory application filed

by Murukeshan,  the brother  of  Sampath,  the High Court

has opined thus:

“The re-constitution of the investigation team by inducting one Haridath as the Chief Investigating Officer, naturally engendered a fear in the mind of the petitioner that some attempt was afoot to deflect the course of investigation.  It is that fear which has necessitated this application.”

From the aforesaid, it is clear as crystal that Haridath

was the Chief Investigating Officer.  After the investigating

team was constituted by the higher officer, the High Court,

as  the  order  would  further  unveil,  had  given  immense

protection to Haridath as far as investigation is concerned.

We may profitably reproduce the said paragraph hereunder:

“The induction of Haridath at the helm of affairs in  the  investigation  of  Sampath  Murder  Case need  not  cause  any  concern  either  to  the petitioner  or  to  anybody  else.   Haridath  is believed to be an officer of proven integrity and of bold  disposition.   He  shall,  however,  submit  a report every three weeks, under intimation to this Court,  to  the  Chief  Judicial  Magistrate,

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Ernakulam,  regarding  the  progress  of  the investigation.  The Chief Judicial Magistrate shall also monitor the investigation and if need be call for the case diary for his perusal.  The present team of  investigation shall  not  be dislocated or changed without the orders of this Court.  Should any member of  the  investigating team feel  that there is any interference with his freedom either from the C.B.I. or from elsewhere, such member shall  be free to address this Court through the Registrar General in a sealed cover.”

5. The aforesaid paragraph makes it quite vivid that the

High Court had really reposed faith in Haridath and also

granted him freedom to investigate and liberty to address

the court through the Registrar General in a sealed cover.

The said order was passed on 22nd December, 2010.

6. The said Haridath was assisted by a team of officers

which  included  the  respondent  Nos.1  and  2.   While  the

investigation was in progress, Haridath committed suicide

on 15th March, 2012, leaving behind a suicide note.  The

said note reads as follows:

“Rajan  and  Unnikrishnan  (CBI  TVPM)  are responsible  for  my this  situation.   Nobody else has any role in this.  They who compelled me to do  everything  and  cheated  me  and  put  me  in deep trouble.  Advocate Seekumar also has some role.  CJM Sri Vijayan also put pressure on me.

Nobody else has any role in this.”

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On the basis of the aforesaid suicide note, the criminal

law was set in motion and the respondents were arrayed as

accused.  The said situation compelled them to invoke the

inherent jurisdiction of the High Court under Section 482 of

the Code of Criminal Procedure, and eventually, as has been

stated earlier, the High Court quashed the same.

7. It is submitted by Mr. Rao, learned senior counsel that

the High Court has fallen into gross error by quashing the

criminal proceeding inasmuch as it is a fit case where there

should have  been a trial.   He has taken us through the

statement  of  the  wife  of  the  deceased  and  the  other

witnesses.  Learned senior counsel has also commended us

to  the  authority  in  Praveen  Pradhan  vs.  State  of

Uttaranchal and Another1, to show that the instant case

is one where ingredients of Section 107 of I.P.C. have been

met with.

8. Mr. P.K. Dey, learned counsel appearing for the C.B.I.,

has also supported the submissions of Mr. Rao.

9. Mr. Prashant Bhushan, learned counsel appearing for

the respondent Nos.1 and 2, per contra, would contend that

1  (2012) 9 SCC 734

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the High Court has justifiably quashed the investigation, for

Haridath,  the deceased,  was holding a superior rank and

there  is  nothing  to  suggest  that  the  respondents  had

instigated  him  or  done  any  activity  that  had  left  the

deceased with no option but  to  commit  suicide.   He has

placed  reliance  upon  Netai  Dutta  vs.  State  of  West

Bengal2 and  M.  Mohan vs.  State,  Represented  by  the

Deputy Superintendent of Police3.

10. To  appreciate  the  rivalised  submissions  in  the

obtaining factual matrix, it is necessary to understand the

concept of abatement as enshrined in Section 107 IPC.  The

said provision reads as follows:-  

“107.  A person abets the doing of a thing, who –  

First – Instigates any person to do that thing; or

Secondly  –  Engages  with  one  or  more  other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place  in  pursuance  of  that  conspiracy,  and  in order to the doing of that thing; or  

Thirdly – Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation  1.  –  A  person  who,  by  wilful misrepresentation, or by wilful concealment of a material  fact  which  he  is  bound  to  disclose,

2  (2005) 2 SCC 659 3  (2011) 3 SCC 626

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voluntarily  causes  or  procures,  or  attempts  to cause or procure, a thing to be done, is said to instigate the doing of that thing.  

Explanation 2 – Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

11. The aforesaid provision was interpreted in Kishori Lal

v. State of M.P4 by a two-Judge Bench and the discussion

therein is to the following effect:-  

“Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct of- fence provided in IPC. 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 provi- sion for the punishment of such abetment, then the offender is to be punished with the punish- ment provided for the original offence. “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.”

4 (2007) 10 SCC 797

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12. In  Analendu  Pal  Alis  Jhantu  v.  State  of  West

Bengal5 dealing with expression of abetment the Court ob-

served:-  

“The expression “abetment” has been defined un- der Section 107 IPC which we have already ex- tracted above. A person is said to abet the com- mission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly  of  Section  107  IPC.  Section  109  IPC provides that if the act abetted is committed pur- suant to and in consequence of  abetment then the offender is to be punished with the punish- ment  provided for  the  original  offence.  Learned counsel for the respondent State, however, clearly stated before us that it  would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.”

13. As we find from the narration of facts and the material

brought on record in the case at hand, it is the suicide note

which forms the fulcrum of the allegations and for proper

appreciation  of  the  same,  we  have  reproduced  it

herein-before.  On a plain reading of the same, it is difficult

to  hold  that  there  has  been  any  abetment  by  the

respondents.  The note, except saying that the respondents

compelled him to do everything and cheated him and put

5 (2010) 1 SCC 707

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him  in  deep  trouble,  contains  nothing  else.   The

respondents were inferior in rank and it is surprising that

such a thing could happen.  That apart, the allegation is

really vague.  It also baffles reason, for the department had

made him the head of the investigating team and the High

Court had reposed complete faith in him and granted him

the liberty to move the court, in such a situation, there was

no warrant to feel cheated and to be put in trouble by the

officers belonging to the lower rank. That apart, he has also

put the blame on the Chief Judicial Magistrate by stating

that he had put pressure on him.  He has also made the

allegation against the Advocate.

14. In  Netai  Dutta (supra),  a  two-Judge  Bench,  while

dealing  with  the  concept  of  abetment  under  Section  107

I.P.C. and, especially, in the context of suicide note, had to

say this:

“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

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resulted  in  the  commission  of  suicide  by deceased Pranab Kumar Nag.   

Apart from the suicide note, there is no allegation made  by  the  complainant  that  the  appellant herein  in  any  way  was  harassing  his  brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any  way  make  out  the  offence  against  the appellant.  The prosecution initiated against  the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in  holding  that  the  First  Information  Report against the appellant disclosed the elements of a cognizable  offence.  There  was  absolutely  no ground to proceed against the appellant herein. We  find  that  this  is  a  fit  case  where  the extraordinary  power  under  Section  482  of  the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal.”

15. In  M.  Mohan (supra),  while  dealing  with  the

abatement, the Court has observed thus:

“Abetment  involves  a  mental  process  of instigating  a  person  or  intentionally  aiding  a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing  suicide,  conviction  cannot  be sustained.

The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended

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to push the deceased into such a position that he/she committed suicide.”

16. As far as Praveen Pradhan (supra), is concerned, Mr.

Rao, has emphatically relied on it for the purpose that the

Court  had  declined  to  quash  the  F.I.R.  as  there  was  a

suicide note.  Mr. Rao has drawn out attention to paragraph

10  of  the  judgment,  wherein  the  suicide  note  has  been

reproduced.   The  Court  in  the  said  case  has  referred  to

certain  authorities  with  regard  to  Section  107 I.P.C.  and

opined as under:

“In fact, from the above discussion it is apparent that  instigation has  to  be  gathered  from  the circumstances  of  a  particular  case.  No straight-jacket formula can be laid down to find out as to whether in a particular case there has been  instigation  which  force  the  person  to commit suicide. In a particular case, there may not  be  direct  evidence in  regard  to  instigation which may have direct nexus to suicide.

Therefore, in such a case, an inference has to be drawn  from the circumstances  and  it  is  to  be determined  whether  circumstances  had been such which in fact had created the situation that a  person  felt totally  frustrated  and  committed suicide.  More  so,  while  dealing  with an application  for  quashing  of  the  proceedings,  a court  cannot  form  a firm  opinion,  rather  a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C.

Thus, the case is required to be considered in the light of aforesaid settled legal propositions.

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In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent  harassment.  It  is  not  a  case  of  a driver; or a man having an illicit relationship with a  married  woman,  knowing  that  she  also  had another  paramour;  and  therefore,  cannot  be compared to the situation of the deceased in the instant  case,  who  was  a  qualified  graduate engineer and still suffered persistent harassment and  humiliation  and additionally,  also  had  to endure continuous illegal demands made by the appellant,  upon  non-fulfillment  of  which,  he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in  the  factory, vis-à-vis  other  employees  which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words  to  the effect,  that,  “had  there  been  any other person in his place, he would have certainly committed  suicide”  is  what  makes  the  present case distinct  from  the  aforementioned cases considering  the  facts  and circumstances  of  the present case, we do not think it is a case which requires any interference by this court as regards the  impugned judgment  and order  of  the  High Court.”

17. We have quoted in extenso from the said judgment and

we  have  no  hesitation  in  stating  that  the  suicide  note

therein  was  quite  different,  and  the  Court  did  think  it

appropriate to quash the proceedings because of the tenor

and nature of the suicide note.  Thus, the said decision is

distinguishable  regard  being  had  to  the  factual  score

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exposited therein.

18. Coming to the case at hand, as we have stated earlier,

the suicide note really does not state about any continuous

conduct  of  harassment  and,  in  any  case,  the  facts  and

circumstances are quite different.  In such a situation, we

are  disposed  to  think  that  the  High Court  is  justified  in

quashing the proceeding, for it  is an accepted position in

law that where no prima facie case is made out against the

accused, then the High Court is obliged in law to exercise

the jurisdiction under Section 482 of the Code and quash

the  proceedings.  [See  V.P.  Shrivastava  v.  Indian

Explosives Limited and Others6]

19. Before parting with the case, we are impelled to say

something.  Mr. Bhushan, learned counsel appearing for the

respondent No. 1 & 2 has drawn our attention to a facet of

earlier  judgment  of  the  High  Court  wherein  it  has  been

mentioned that at one time the deceased was pressurised by

some superior officers.  We have independently considered

the  material  brought  on  record  and  arrived  at  our

conclusion.  But, regard being had to the suicide note and

6  (2010) 10 SCC 361

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other  concomitant  facts  that  have  been unfurled,  we  are

compelled to recapitulate the saying that suicide reflects a

“species of fear”.  It is a sense of defeat that corrodes the

inner soul  and destroys the will  power and forces one to

abandon  one’s  own  responsibility.   To  think  of

self-annihilation because of something which is disagreeable

or intolerable or unbearable, especially in a situation where

one is required to perform public duty, has to be regarded

as a non-valiant attitude that is  scared of  the immediate

calamity or self-perceived consequence.  We may hasten to

add that  our submission has nothing to do when a case

under Section 306 IPC is registered in aid of Section 113A of

the Evidence Act, 1872.  

20. In  the  result,  we  do  not  perceive  any  merit  in  the

appeal and the same stands dismissed accordingly.

..........................J. [Dipak Misra]

...........................J. [Prafulla C. Pant]

New Delhi, August 13, 2015.