Summary of Judgement

The Judgement

[PER : SHYAM C. CHANDAK, J.]

1) Applicants, accused in the F.I.R. bearing C.R. No. I-36 of 2017, under Section 306 r/w. 34 of the Indian Penal Code, registered with Vishnu Nagar Police Station, Dombivali, Thane dated 25th February 2017, have preferred this application under Section 482 of Cr.P.C., seeking for quashing of said F.I.R.

2) Heard learned Advocate Mr. Palve for the Applicants, learned A.P.P. Mr. Chate for Respondent No.1-State and learned Advocate Mr. Kochrekar for Respondent No.2. Perused the record and report of the handwriting expert.

2.1) Record indicates that, by an Order dated 14th November 2017, this Court directed that, police shall not file charge-sheet in the crime without prior permission of this Court, however, they shall proceed with the investigation. In view of the earlier oral direction and Order dated 12th February 2018, report of the handwriting expert has been produced by the Investigating Officer for inspection of the Court.

3) The facts in brief are that, Ashok Pawar (‘the deceased’, for short) was working as Assistant in Confidential Section of the Office of Employees State Insurance Corporation (ESIC), at Thane. It was his duty to maintain information pertaining to corruption matters, grievances of the labourers working in companies, properties purchased/sold by the Officers and employees of the office etc. Since September 2015, Applicant No.1 was working in the said office as Deputy Director with additional charge of the Establishment Branch since November, 2016. The Applicant No.2 was working there as Social Security Officer. As alleged, Applicant No.1 was harassing the deceased on account of 3-4 years old incident when the deceased had complained against his misconduct to his superior. For last many years the deceased was suffering from migraine. The Applicants were aware of this fact. The Applicants, however, harassed the deceased as he issued notice to Applicant No.2 for not giving intimation about purchase of property. The harassment was in the form of taunting the deceased, threatening to transfer him to other place and causing him to do field work by visiting different companies, in different areas for collecting information about receipt of salary to its labourers, but in very short period when he was not well. Thus, the Applicants in furtherance of their common intention misused their official powers, mentally harassed the deceased and abetted him to commit suicide. Consequently, on 21st January, 2017 between 8.30 a.m. to 11.30 a.m., at his residence, the deceased committed suicide by hanging and leaving suicide notes that, the Applicants are responsible for his death. Hence, police registered this crime on the Report of Respondent No.2.

4) Learned Advocate for the Applicants submitted that, even if narration in the F.I.R. is accepted as it is, the same is not sufficient to establish the abetment defined under Section 107 of I.P.C. because the element of ‘instigation’ to commit suicide by the deceased, is absolutely absent in the said narration. To clarify the point more, learned Advocate submits that there is no material showing that the Applicants have played an active role by the act of instigation or by doing such act to prompt the deceased to commit suicide. In absence of any positive act on the part of the Applicants to instigate or aid in committing suicide, conviction for the same cannot be fastened to them. In short, according to learned Advocate mens rea is an essential concomitant to invite a penal liability under Section 306 of I.P.C., which is missing in the case in hand. Hence, the charge under Section 306 of the I.P.C. cannot be brought in aid of the prosecution.

5) In contrast, learned A.P.P. vehemently submitted that, for his own misconduct, Applicant no.2 was taunting and threatening the deceased as above. Notwithstanding the deceased was suffering from severe ill health, the Applicants wanted him to accept the promotion and go to a distant place as a branch Manager. The Applicants did not limit them to this, but made the deceased to do a difficult task to collect the information about receipt of payments to the labourers but covering a large area by visiting different locations, that too in a short span of time when the deceased was struggling to recover from the prolonged ailment. Before that, there was persistent harassment to the deceased by the Applicants, as specifically narrated in the report. The Applicants did this all just because the deceased issued a notice to Applicant No.2, which conduct of the Applicants ultimately lead the deceased to end his life. As such, there was requisite mens rea on the part of the Applicants which caused the deceased to commit suicide. This is confirmed by the email and the suicide notes left behind by the deceased. Therefore, the Applicants cannot escape the prosecution under Section 306 r/w. 34 of the I.P.C.

5.1) Learned Advocate Mr. Kochrekar, for Respondent No.2 adopted the above submissions and submitted that, the Application may be dismissed.

6) As provided in Section 107 of the I.P.C., a person can be said to have abetted in doing a thing, if he instigates any person to do that thing. Thus, it is manifest that direct involvement of the person concerned in commission of the offence of suicide is essential to bring home the offence under Section 306 of the I.P.C. As held in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi), reported in AIR 2010 SC 1446, “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 consequence. Yet reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be “instigation”.

7) It is observed that, to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage 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’; “to keep irritating or annoying somebody until he reacts”. Similarly, ‘urge’ means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Where the accused by his acts or by a 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.

7.1) It is further observed that, the question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviour in human beings are complex and multifacet. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicide pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self protection or an escapism from intolerable self.

8) Guided by the observations in the reported cases referred above, we have carefully considered the facts of the case in hand. The material incriminating against the Applicants comprised of allegations made in the F.I.R., suicide notes and one email of the deceased. The suicide notes are in the handwriting of the deceased as opined in the handwriting expert’s report. The statement of the Officer and coemployee of the deceased including the Applicants, recorded under Section 161 of Cr.P.C., are available on record. There is, however, nothing incriminating in those statements countenancing the text of the F.I.R. and the suicide notes.

9) In so far as the F.I.R. is concerned, certain assertions therein attributed towards conduct of the Applicants, which ultimately led to the suicide by the deceased, are hearsay. Yet, the same are relevant under Section 32(1) of Evidence Act as ‘dying declaration’ of the deceased. The suicide notes are also falling within the purview of said Section 32(1).

10) The first allegation in the F.I.R. is that, about 3 to 4 years prior to the incident, in the office, the Applicant No.2 had abused and threatened to beat the deceased on account of some unknown reason. The deceased, therefore, had complained against Applicant No.2 with his superior Mr. Sinha. In turn, Mr. Sinha gave an understanding to Applicant No.2. Since then, Applicant No.2 was harassing to deceased. However, this is very vague statement and relates to a very stale incident. Therefore, it would hardly provide any base to attract said Section 107 of I.P.C. Secondly, Mr. Sinha, has not stated the said facts.

11) The second allegation is that, due to the aforesaid old incident, Applicant No.2 was deliberately harassing the deceased all the time in the office by taunting and threatening to transfer him at a distant place. However, the words used to taunt are not reproduced. The F.I.R. is silent as to exactly when the Applicant No.2 taunted and threatened to transfer the deceased as noted above. It was not the case that, Applicant No.2 alone had the administrative competence to transfer the deceased. Moreover, the deceased did not complain to his superiors against his harassment during last 3-4 years. As such this circumstance is also not helpful to bring in the element of abetment.

12) The third circumstance is that, Applicant No.2 started to harass the deceased more as he had issued a notice to him for not informing the Office about purchase of the property. There is, however, no clarity as to how Applicant No.2 was harassing the deceased more.

13) The next allegation is that, when the deceased declined to accept his promotion occurred on 24th October, 2016 on the ground of ill health, Applicant No.2 insisted on him to accept the promotion and threaten that otherwise he would harass him by transferring as a Branch Manager. However, there is nothing on record to show as to when the Applicant No.2 had so threaten. As such, there is no nexus between the said conduct of Applicant No.2 and the suicide.

14) In so far as Applicant No.1 is concerned, he was not directly or indirectly involved in the aforesaid act, misconduct and behaviour alleged against Applicant No.2. The F.I.R. is silent as to exactly when the deceased informed the Respondent No.2 about his said harassment.

15) It is alleged that, after demonetization of 2016 and at the instance of Applicant No.2, the Applicant No.1 ordered the deceased to collect information about receipt of salary to the labourers of the Companies situated in Ghodbunder, Wagle Estate, Mulund and Bhandup Area, between 28th November, 2016 to 2nd December, 2016. The Applicant No.1 knew that, the deceased was suffering from migraine, however he deliberately ordered the deceased to do the said field work just to harass him. Yet the deceased completed that task. Thereafter, the medical condition of the deceased deteriorated more.

16) However, there is no material to show that, Applicant No.1 had ordered the deceased to do the said field work on the say of Applicant No.2. Secondly, the deceased alone was not ordered to do that work but jointly with a co-employee. By same Order two other employees were also directed to do that work.

17) It is alleged that, fed up with the said harassment from the Applicants, on 1st December, 2016, the deceased submitted his application for ‘Voluntarily Retirement’ w.e.f. 7th March, 2017. It is alleged that, the deceased had complained against the Applicants by email dated 5th December, 2016. Said email is on record wherein the deceased conveyed that, his way of scrutinizing the intimations of purchase of properties was not liked by some employees. When he did not accept the promotion, one person started threatening him that, if he does not accept promotion, he would be assigned the work of Branch Manager/SSO etc. On 28th November, 2016 he was assigned the field work as noted above. His health condition was against that work, however, he visited the relevant places within the given time. Due to sunstroke plus physical and mental strain, he was required to take pain killers beyond prescribed maximum dose which affected his health, adversely. Hence, help him to retire peacefully.

18) However, the Application dated 1 st December, 2016 seeking for ‘Voluntarily Retirement’ was already approved on 17th January, 2017 by Mr. Sanjaykumar Sinha, Regional Director, when the deceased was on leave. This Application and earlier Application dated 2nd November, 2016 do not state the reason for ‘Voluntarily Retirement’. The earlier Application was withdrawn by the deceased on 9th November, 2016. Since the deceased did not give name of the said person who was threatening him as complained in his email dated 5th December 2016, no action was possible on that email by the office. As noted above, besides the deceased his three co-employees were also ordered to do the said field work. Moreover, the email does not speak that, Applicant No.1 knew about the ill-health of the deceased, yet he deliberately ordered him to do the said field work just to harass him at the instance of Applicant No.2. There is huge time gap between the email dated 5th December, 2016 and the date of suicide. This email seems to be withdrawn as stated in the suicide. In-between, there was no instance of any harassment to deceased either by the Applicants or any co-employee.

19) Now coming to the suicide notes. One suicide note states that, including Applicant No.2, other two SSOs did not submit the information/documents as called for by the regional office in connection with acquisition of immovable property. Five employees have not submitted explanations/documents as called for by the S.R.O in connection with purchase of flat.

20) The said suicide note further states that, “I cannot disclose the name of the person, who was threatening me because nobody will dare to come forward to stand as a witness against him. However, if insisted, I will disclose the name to the R.D. (Regional Director) personally, officially and confidentially. Regarding disclosing the names of the officials who have not given intimation of purchase of properties, not furnished relevant documents/information, etc., it is stated that, if I will disclose their names, then action will have to be taken against them for violation of CCS (Conduct) Rules and there may be threat to my life. However, if insisted, I will explain the ……. (illegible) to the R.D. personally, officially and confidentially. I don’t have personal enmity with anybody so, I will not disclose their names”.

20.1) In the another suicide note the deceased has stated that, the Applicants should be held responsible for his suicide.

20.2) Thus, the aforesaid suicide notes to some extent support the allegations in the FIR. However, with reference to the email dated 5 th December 2016, in the first suicide note the deceased has written that, “today, the matter was discussed with the R.D., my yesterday’s email may ….. (struck of) may not be ….. (struck of) may be treated as withdrawn.”

Today, the matter was discussed with the RD. My yesterday’s email may be treated as withdrawn. Ref. :- My email dated 5/12/2016 on the above subject. On 6/12/2016 the matter was discussed with the Director SR Thane (illegible)/ RD Mumbai (illegible). My email dated 5/12/2016 may kindly be treated as withdrawn.

21) Considering the aforesaid contents of the suicide note, it is evident that, the said suicide note does not sufficiently clarify as to whether only Applicants were threatening the deceased or not. Secondly, even though, the email dated 5th December, 2016 speaks against the Applicants, said email has been withdrawn by the deceased himself by virtue of the suicide note. Moreover, from 9th January, 2017 till the date of suicide i.e., 21st January, 2017, no act of either harassment or threatening to transfer the deceased was committed by the Applicants because during this period, the deceased was absent on his duty due to ill health.

22) Conspectus of the above discussion is that, there is no sufficient material to constitute the offence of Section 306 r/w 34 of the I.P.C. against the Applicants. In short, whatever incriminating material is available in the form of F.I.R., email dated 5th December 2016 and the suicide notes, the same is not sufficient to make out the offence of Section 306 r/w.34 of I.P.C. As such, continuation of the impugned F.I.R. would be abuse of process of law.

23) In view thereof, relief must be granted to the Applicants in so far as they are sought to be prosecuted for the charge of the offence punishable under Section 306 r/w 34 of the I.P.C. Accordingly, the criminal application deserves to be allowed and is accordingly allowed.

23.1) Rule is made absolute in the aforesaid terms.