High Court of KeralaSingle Judge2016-06-06Disposed of; direction to Sessions Court to con...

Gajendran v. State of Kerala and Niji

Case / Petition Number:Crl.MC.No. 3371 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2016-06-06
Court Decision / Holding: The petition under Section 482 CrPC is disposed of with a direction to the Sessions Judge to consider the applicant’s discharge, if any, without insisting on personal appearance, and to evaluate whether prima facie material exists to commit the petitioner for trial for Section 306 read with Section 34 IPC. The High Court did not quash the proceedings but redirected the matter for discharge proceedings in the Sessions Court.
Final Disposition: Disposed of; direction to Sessions Court to consider discharge without requiring personal presence and to assess prima facie material for trial.

Parties to the Case

Appellants / Petitioners

Gajendran, s/o Achuthan

Respondents

The State of Kerala through the Public Prosecutor, Chevayoor Police Station, Kozhikode District
Niji, d/o Impichikutty, Parakkulathil House, Marikunnu P.O., Kozhikode District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. Madhu
• Sri. M. Raghukumar

Counsels for Respondents

• Public Prosecutor, Sri Rajesh Vijayan

Case Synopsis & Summary

This is a criminal miscellaneous petition under Section 482 CrPC filed in the Kerala High Court by the sole accused, Gajendran, seeking quashal of proceedings initiated in Crime No. 642/2010 of Chevayoor Police Station, Kozhikode, for an alleged offence under Section 306 read with Section 34 IPC. The case arises from the suicide of Suresh Babu, husband of the 2nd respondent, who died by hanging on 3 December 2010. Police investigation concluded the death as “unnatural” and, following Annexure A1, submitted a report to the Sub Divisional Magistrate. The 2nd respondent approached the Magistrate and a complaint was filed implicating the petitioner, his wife, and a relative. The Magistrate examined witnesses and held that there were sufficient grounds to proceed against the petitioner for a prima facie case under Section 306/34 IPC. The petitioner sought relief under Section 482 CrPC, arguing absence of ingredients of abetment/instigation. The High Court, while noting arguments referencing Amit Kapoor v. Ramesh Chander and Mohandas @ Mohan v. State of Kerala, observed that instigation requires an intentional act or direct/indirect coercion, and that the present facts do not show the accused creating circumstances leaving the deceased with no option but to commit suicide. Relying on established principles under S.227 CrPC, the Court refused to quash at this stage, and disposed the petition with a direction to the Sessions Court to consider discharge, without personal appearance, and to assess whether prima facie material exists for trial.

Provisions of Law Cited

Section 306 IPCSection 34 IPCSection 107 IPCSection 482 CrPCSection 227 CrPC

Legal Doctrines & Maxims

Not a post office or mouthpiece of the prosecution
Prima facie
grave suspicion
sift and weigh the evidence
two views are equally possible
mens rea
instigation may be inferred by acts

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that for an offence under Section 306 IPC there must be an abetment under Section 107 IPC; there is no concrete allegation of instigation or mens rea in the complaint or witness statements. Citing Amit Kapoor v. Ramesh Chander and Mohandas @ Mohan v. State of Kerala, it is argued that instigation requires an intentional act and that mere circumstances or alleged discontent are insufficient to sustain a charge under 306/34 IPC. The prosecution’s reliance on multiple witnesses to show a prima facie case is urged to be examined by the Sessions Court, not at the 482 stage, and that the petition should be allowed to discharge in absentia given the lack of direct provable instigation at this stage.

Contentions of Respondents

The State contends that the Magistrate has examined eight witnesses and found prima facie grounds to proceed under Section 306 read with 34 IPC. Interpreting the law per section 482 CrPC, the High Court should not subvert the Sessions Court’s function by quashing at this stage; the matter requires a discharge hearing before the Sessions Court, where the prosecution materials will be scrutinized. The respondents rely on the settled law that a court may frame charges when grave suspicion exists and that the court should not act as a conduit for the prosecution but must examine the broad probabilities and totality of evidence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Amit Kapoor v. Ramesh Chander	2012 (9) SCC 460	Distinguished	Cited to emphasize that instigation involves an intentional act; however, in the present facts there is no clear direct or indirect act establishing instigation, leading the court to distinguish these facts from Amit Kapoor.
Mohandas @ Mohan v. State of Kerala	2013 KHC 330	Mentioned Only	Cited in argument regarding instigation and intentional act; not directly applied to sustain the charge; thus treated as a reference rather than a binding extension of the doctrine in this case.
Mohan v. State	2011 (3) SCC 626	Mentioned Only	Cited to reflect the principle that mens rea and active act are important for instigation; used in argument but not adopted as the governing basis for quashing in this factual scenario.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938** ## **Crl.MC.No. 3371 of 2016 ()** **--------------------------CP. NO.35/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOZHIKODE. CRIME NO. 642/2010 OF CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT.** **........** ## **PETITIONER/1ST ACCUSED:** **------------------------------------------** **GAJENDRAN, S/O. ACHUTHAN, AGED 52 YEARS, RESIDING AT MAKKOLATH HOUSE, GURUVAYURAPPAN COLLEGE P.O., KOZHIKODE DISTRICT.** **BY ADVS.SRI.T.MADHU, SRI.M.RAGHUKUMAR.** **RESPONDENT/STATE: ----------------------------------** |**1.**|**THE STATE OF KERALA,**| |---|---| ||**THROUGH THE STATION HOUSE OFFICER,**| ||**CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT,**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM- 682 031.**| |**2.**|**NIJI, D/O.IMPICHIKUTTY,**| ||**PARAKKULATHIL HOUSE,**| ||**MARIKUNNU P.O., KOZHIKODE DISTRICT- 673 012.**| ||**R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN.**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 3371 of 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **A1 THE TRUE COPY OF THE FINAL REPORT FILED BY THE 1ST RESPONDENT IN CRIME NO.642/2010 OF CHEVAYOOR POLICE STATION BEFORE THE SUB-DIVISIONAL MAGISTRATE'S COURT, KOZHIKODE DATED 27/08/2011.** **A2 THE TRUE CERTIFICATE COPY OF THE PRIVATE CRIMINAL COMPLAINT IN C.M.P NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **A3 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW1 DATED 21/05/2013 IN C.M.P NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT -I, KOZHIKODE.** **A4 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW2 DATED 21/05/2013 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **A5 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW3 DATED 04/10/2013 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **A6 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW4 DATED 04/10/2013 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT -I, KOZHIKODE.** **A7 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW5 DATED 16/01/2014 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **A8 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW6 DATED 23/01/2015 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **A9 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW7 DATED 27/02/2015 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT- I, KOZHIKODE.** **....2/-** ## **Crl.MC.No. 3371 of 2016** **A10 THE TRUE CERTIFIED COPY OF THE STATEMENT OF CW8 DATED 03/09/2015 IN CMP NO.576/2013 ON THE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT I, KOZHIKODE** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 3371 of 2016 - - - - - - - - - - - - - - - - Dated 6[th] June, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** Suresh Babu, the husband of the 2[nd] respondent herein committed suicide by hanging on 3.12.2010. In respect of the above incident, crime No.642 of 2010 of Chevayoor Police Station was registered under the caption 'unnatural death'. Investigation revealed that aforesaid Suresh Babu was having illicit relationship with one Sheeba, the wife of the petitioner herein. Autopsy conducted revealed that the cause of death was hanging. 2. Investigation was conducted by the Sub Inspector if Police, Chevayoor and on its conclusion Annexure A1 report, was submitted before the Sub Divisional Magistrate, Kozhikode, closing the above matter. 3. Aggrieved by the above, the 2[nd] respondent filed a complaint before the learned Magistrate implicating the petitioner, his wife and a relative of the petitioner. The Cri.M.C. No.3371 of 2016 -2- learned Magistrate examined the complainant and the witnesses and concluded that sufficient grounds were made out for proceeding against the accused for the offence punishable under Section 306 read with Section 34 of the IPC. 4. On receipt of summons from the learned Magistrate who initiated committal proceedings, the petitioner has filed this petition under Section 482 of the Code of Criminal Procedure seeking to quash the proceedings on the ground that the ingredients of Section 306 of the IPC is not attracted in the facts and circumstances. 5. I have heard the learned Public Prosecutor as well. 6. It is submitted by the learned counsel that for constituting offence under Section 306 of the IPC, the prosecution should have a definite case that there was abetment within the meaning of Section 107 of the IPC. No such allegations are there, either in the complaint or in the statement of the witnesses. It is further submitted by the learned counsel that it is borne out from the investigation Cri.M.C. No.3371 of 2016 -3- conducted by the police that the deceased was having an illicit affair with the 2[nd] accused and it was being disgraced by the above fact that Suresh Babu had decided to end his life. 7. The learned counsel placing reliance on the judgment of the Apex Court in **Amit Kapoor v. Ramesh Chander [2012 (9) SCC 460]** and that of this Court in **Mohandas @ Mohan v. State of Kerala** ( **2013 KHC 330)** contended that, in order to attract the offence under Section 306 of the IPC, there should be an intentional act from the part of the accused either directly or indirectly. It is also submitted by the learned counsel referring to the decision of the Apex Court in **Mohan v. State (2011 (3) SCC 626)** that, in order to bring home the finding of guilt against a person who is an accused having committed offence under Section 306 of the IPC, there has to be a clear _mens rea_ and an active act which led the deceased to commit suicide. It was argued that the word Instigation means is to goad, urge forward, provoke, incite or encourage to do 'an act'. To Cri.M.C. No.3371 of 2016 -4- 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 a reasonable certainty to incite the consequence must be capable of being spelt out. According to the learned Counsel, the present case is not one where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. 8. The learned Public Prosecutor refuted the contention of the learned counsel and submitted that the learned Magistrate had examined not less than 8 witnesses to come to a conclusion that sufficient grounds were made out for proceeding against the accused. It is further submitted that this Court will not be justified in exercising powers under Section 482 of the Code of Criminal Procedure when the petitioner has a remedy by approaching the Cri.M.C. No.3371 of 2016 -5- Sessions Court by filing a petition for discharge. The prosecution materials will be available before Sessions Court and the Sessions Court will be in a better capacity to analyze the materials and to conclude whether the offence under Section 306 of the IPC is actually made out or not. 9. I find merit in the submissions of the learned Public Prosecutor. 10. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. By and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while Cri.M.C. No.3371 of 2016 -6- giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court. 11. This Court in exercise of powers under Section 482 of the Code of Criminal Procedure will not be justified in analyzing the statement of the witnesses which was relied on by the learned Magistrate to conclude that sufficient grounds were made out to proceed against the petitioner. 12. Having regard to the facts, I am of the view that the petitioner can be relegated to the Court of Sessions to plead for discharge at the appropriate stage. In the peculiar facts and circumstances, I am of the view that the petitioner can be permitted to plea for discharge in _absentia_ . In the result this petition is disposed off, with a Cri.M.C. No.3371 of 2016 -7- direction to the learned Sessions Judge to consider the application, if any, of the petitioner for discharge without insisting for the personal presence of the petitioner. The precedents and citations submitted by the learned counsel and also the materials on record shall be considered by the learned Sessions Judge to conclude whether any _prima facie_ material is made out against the petitioner to make him undergo the ordeal of protracted trial. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-7.6.16