IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3084/2016 BETWEEN:
1. Sandya Rano, Aged about 67 years, W/o. Sushil Kumar Rano, R/at No.276, Hirapur, P.O. Dhanbad, District Dhanbad – 826 001.
2. Juma Rano @ Indira Rano, D/o. Sushil Kumar Rano, No.26, CWPRS, Stop Kolo Kirkatwadi, Khadakwasir, Pune City, Maharashtra – 411 025. …Petitioners (By Sri. Shankarappa, Advocate) AND:
1. State of Karnataka, Rep. by Sub-Inspector of Police, Kumaraswamy Layout Police Station, Bengaluru – 560 060.
2. Smt. Anup Kumar Mandal, Aged 63 years, S/o. Sisir Kumar Mandal, Residing at No.P30, Block B, Lake Town, Kolkatta, West Bengal – 700 089. ...Respondents (By Sri. Vijayakumar Majage, Addl. SPP for R1; Sri. M. Jai Prakash Reddy, Adv. for R2) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.8374/2016 pending before the XLIV Addl. Chief Metropolitan Magistrate, Bengaluru.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioners are accused Nos.2 and 3 in the charge sheet laid against them for the alleged offences punishable under Sections 498A, 306 r/w 34 of IPC.
2. Heard learned counsel for the petitioners and learned Addl. SPP for respondent No.1 and learned counsel for respondent No.2. Perused the records.
3. Learned counsel for the petitioners, placing reliance on the decisions of the Hon’ble Supreme Court in SANJU @ SANJAY SINGH SENGAR Vs. STATE OF MADHYA PRADESH reported in (2002) 5 SCC 371 and in GOPALKRISHNA Vs. SHARAD KUMAR reported in 2015(1) KCCR 868 has built up an argument that the material on record does not disclose the involvement of the petitioners in the alleged offences. He contended that there is nothing on record to show that the petitioners herein gave any provocation to the deceased to commit suicide. The material produced by the prosecution does not establish the ingredients of any instigation or abetment by the petitioners. Under the said circumstances, prosecution of the petitioners for the alleged offences is patently illegal and an abuse of process of Court. Further, the learned counsel would submit that petitioner No.1/accused No.2 is the resident of Dhanbad and petitioner No.2/accused No.3 is the resident of Maharashtra. The material on record does not disclose that at the time of the alleged commission of offence, they were residing with the deceased. Under these circumstances, prosecution of the petitioners is unjustified and an abuse of process of Court and therefore, is liable to be quashed.
4. Learned Addl. SPP appearing for respondent No.1, however, disputed the submissions and referring to the statement of the landlord-Cw2 and another neighbour- Cw3 would submit that direct evidence is available to show that immediate provocation for the deceased to commit suicide was given by accused Nos.2 and 3. There are also allegations of cruelty falling within the meaning of Section 498A of IPC and hence, there are no grounds to quash the proceedings.
5. Considered the submissions and perused the records.
6. In the decision relied on by the learned counsel for the petitioners’ in Sanju @ Sanjay Singh Sengar’s case, in para 13, Hon’ble Supreme Court has observed as under:
“Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased ‘to go and die’. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him ‘to go and die’. Even if we accept the prosecution story that the appellant did tell the deceased ‘to go and die’, that itself does not constitute the ingredient of ‘instigation’. The word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.”
In the above decision, sole witness was relied on by the prosecution, who stated in his statement recorded under Section 161 of Cr.P.C. that at the instigation of the accused, deceased committed suicide. In that background, Hon’ble Supreme Court was of the view that there was no reliable material to proceed against the accused therein for the offence under Section 306 of IPC. In the instant case, on going through the material on record, I find that Cw2 and Cw3, namely, the landlord and the immediate neighbour, where the deceased was residing, have graphically narrated the incident that had taken place in the house, immediately before the deceased committed suicide. In the face of this evidence, I am unable to accept the contention of the learned counsel for the petitioners insofar as involvement of petitioner No.1/accused No.2 is concerned. However, insofar as petitioner No.2/accused No.3 is concerned, I do not find any material in the charge sheet to show her presence in the house during the occurrence. Even with regard to the allegations constituting the offence under Section 498A is concerned, the allegations made against petitioner No.2/accused No.3 is general and vague. Prosecution has not narrated any specific instance of cruelty by petitioner No.2/accused No.3. On the other hand, the material on record discloses that petitioner No.1/accused No.2 and petitioner No.2/accused No.3 were not residing with the victim. Hence, having regard to the above material, in my view, prosecution initiated against petitioner No.1/accused No.2 deserves to be continued with. However, insofar as petitioner No.2/accused No.3 is concerned, prosecution launched against her is liable to be quashed.
Accordingly, petition is allowed-in-part. Petition filed by petitioner No.1/accused No.2 is dismissed. Petition filed by petitioner No.2/accused No.3 is allowed.
Proceedings in C.C.No.8374/2016 pending on the file of XLIV Addl. Chief Metropolitan Magistrate, Bengaluru, is quashed only insofar as petitioner No.2/accused No.3 is concerned.
It is made clear that the observations made in this order are confined to the contentions raised by the petitioners. The trial Court shall not be influenced in whatsoever manner with the observations made in this order and shall take independent decision at the stage of considering the case of petitioner No.1/accused No.2 for discharge, in accordance with law.
Learned counsel for the petitioners’ submits that petitioner No.1/accused No.2 is sick and bedridden. If so, petitioner No.1/accused No.2 is free to make necessary application before the learned Magistrate seeking exemption from personal appearance and the learned Magistrate may consider the same favourably.
Sd/- JUDGE SV