Akhilash PK v State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 30[TH] DAY OF JUNE 2023 / 9TH ASHADHA, 1945 CRL.MC NO. 2026 OF 2023`** ## **`AGAINST SC NO.321/2019 OF ADDITIONAL DISTRICT COURT & - SESSIONS COURT IV, THALASSERY PETITIONER/ACCUSED NO.2 :`** ``` AKHILASHPK AGED34YEARS,S/OSIVAN, POTTAKKALHOUSE,AYOTHUMCHAL, MANATHANAP.O,KANNURDISTRICT., – PIN670674 ``` ``` BYADVS. BONNYBENNY BALUTOM BEJOYJOSEPHP.J. ``` ## **`RESPONDENTS/COMPLAINANT/STATE :`** ``` STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,KOCHI,PIN682031 BYADVPUBLICPROSECUTOR ``` ``` SRI.TRRENJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 30.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.2026 of 2023 2 ## **ORDER** The instant petition is filed under Section 482 of the Code of Criminal Procedure (“the Code” for the sake of brevity). 2. The petitioner herein is the 2nd accused in S.C. No.321/2019 on the file of the Additional District Court-IV, Thalassery. In the above case, he is accused of having committed an offence punishable under Section 306 r/w Section 34 of the IPC. 3. The prosecution allegation is that during the intervening hours between 9 am on 20.08.2014 and 10 am on 21.08.2014, a person by the name of Pavithran took his own life on account of the harassment meted out to him by the accused. 4 Sri. Bony Benny, the learned counsel appearing for the petitioner, submitted that against the aforesaid Pavithran, Crime No. 447 of 2014 was registered on 16.8.2014 based on a complaint lodged by Smt. K. Baby Lathika, the Member of the Child Welfare Committee, Kannur. In her complaint, it was alleged that the complainant had visited the Kelakam Athikandam Colony, and the statements of a few named minor children were recorded. They have stated that the Crl.M.C No.2026 of 2023 3 aforesaid Pavithran, who was managing the affairs of the Athikandam Devi Temple, had sexually abused the children. After two days of registration of the crime, the aforesaid Pavithran took his own life. He had written a death note naming certain persons as responsible for persuading the minor children to lodge a false complaint against him. According to the learned counsel, the suicide note does not contain the name of the petitioner herein. It is further submitted that the 3rd accused had approached this Court, and by judgment dated 24.2.2023 in Crl.M.C. No.4405 of 2019, the proceedings against the 3rd accused has been quashed by this Court. It is submitted that the petitioner is similarly placed as the 3rd accused. 5. The learned public prosecutor submitted that the allegations against the petitioner are grave. It is further submitted that the petitioner is also known as Unni, and therefore, he cannot be heard to contend that his name has not been mentioned by the deceased. 6. I have considered the submissions advanced, and have gone through the records. 7. The specific allegation against the petitioner and the Crl.M.C No.2026 of 2023 4 other accused is that they persuaded some minor children to lodge complaints against the deceased, alleging that he had subjected the children to sexual abuse. The petitioner has placed on record a copy of the complaint lodged by the Member, Child Welfare Committee, Kannur, and the statement of children who were allegedly abused. After the registration of the crime on 16.08.2014, Pavithran committed suicide on 21.08.2014. 8. The question is whether, in the above fact scenario, the offence under Section 306 of the IPC would be attracted. Section 107 of the IPC which defines abetment of a thing reads as under: Section 107: Abetment of a thing - 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, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to Crl.M.C No.2026 of 2023 5 instigate the doing of that thing. 9. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing a thing. The more active role, which can be described as instigating or aiding the doing of a thing, is required before a person can be said to be abetting the commission of offence under Section 306 of the IPC. The Apex Court has time and again held that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had, in fact, induced the person to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord, and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. (See: In **State of W.B. v.** Crl.M.C No.2026 of 2023 6 **Orilal Jaiswal** [1994 (1) SCC 73], **Amalendu Pal @ Jhantu v. State of West Bengal** [2010 (1) SCC 707]). It is by now settled that in order to convict a person under Section 306 of the IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option. See S. S. Chheena v. Vijay Kumar Mahajan 2010 (12) SCC 190. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605] it was held that there should be positive materials to conclude that there was an intention to provoke, incite or encourage the doing of an act by the latter. 10. The Apex Court in **Sanju @ Sanjay Singh Sengar v. State of M.P** [(2002) 5 SCC 371] had considered the earlier precedents and had held as follows in paragraphs 9 to 12, which reads as follows: "9. In Swamy Prahaladdas v. State of M.P. & Anr., 1995 Supp (3) SCC 438, the appellant was charged for an offence under S.306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased to go and die'. This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide. 10. In Mahendra Singh v. State of M.P., 1995 Supp (3) SCC Crl.M.C No.2026 of 2023 7 731, the appellant was charged for an offence under S.306 I.P.C. basically based upon the dying declaration of the deceased, which reads as under: "My mother - in - law and husband and sister - in - law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister - in - law. Because of those reasons and being harassed I want to die by burning." 11. This Court, considering the definition of 'abetment' under S.107 I.P.C., found that the charge and conviction of the appellant for an offence under S.306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 12. In Ramesh Kumar v. State of Chhattisgarh, 2001 (9) SCC 618, this Court while considering the charge framed and the conviction for an offence under S.306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged for abetting Crl.M.C No.2026 of 2023 8 the offence of suicide should be found guilty." 11. In the light of the principles laid down by the Apex Court, I have considered the nature of allegations against the petitioner. The only material based on which the petitioner was implicated is the suicide note written by the deceased. In the suicide note, the name of the petitioner has not been mentioned. Even if it is taken that the petitioner is known by the name Unni, I am of the considered opinion based on the allegations in the final report the petitioner cannot be held responsible for the unfortunate event which led to the suicide of Pavithran. 12. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The 1 [1992 Supp (1) SCC 335 Crl.M.C No.2026 of 2023 9 ## illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. - (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. - (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. - (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. Crl.M.C No.2026 of 2023 10 - (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. - (5) Where the allegations made in the FIR or complaint 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. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. - (7) 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. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will 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 whim or caprice. ## 13. Having considered the facts of the instant case, in the light of Crl.M.C No.2026 of 2023 11 the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any offence against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings against the petitioner. Resultantly, this petition is allowed. Annexure-A2 FIR in Crime No.452 of 2014 of the Kelakam Police Station and all further proceedings pursuant thereto against the petitioner now pending as S.C.No.321/2019 on the file of the Additional Sessions Court-IV, Thalassery, are quashed. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** NS Crl.M.C No.2026 of 2023 12 ## **`APPENDIX OF CRL.MC 2026/2023`** ``` PETITIONERANNEXURES: ``` |`Annexure `|`A1`|`PHOTOSTAT COPY OF THE SUICIDE NOTE IN CRIME`| |---|---|---| |||`NO.452/14 OF KELAKAM POLICE STATION KANNUR`| |`Annexure `|`A2`|`PHOTOSTAT COPY OF FIR FIS AND THE PHOTOSTAT`| |||`COPY OF CHARGE SHEET IN CRIME NO.452/14 OF`| |||`KELAKAM POLICE STATION KANNUR DATED 4.07.2017.`| |`Annexure `|`A3`|`PHOTOSTAT COPY OF FIR NO.447 DATED 16.8.2014`| |||`OF KELAKAM POLICE STATION KANNUR`| |`Annexure `|`A4`|`PHOTOSTAT COPY OF COMPLAINT FILED AGAINST`| |||`PAVITHRAN (DECEASED) BY THE CHILD WELFARE`| |||`COMMITTEE DATED 16.8.2014.`| |`Annexure `|`A5`|`PHOTOSTAT COPY OF ORDER IN`| |||`CRL.M.C.NO.1959/2015 DATED 28.7.2015`| |`Annexure `|`A6`|`THE CERTIFIED COPY OF THE ORDER IN CRL M.C`| |||`NO.4405/2019 DATED 24.02.2023`|