Rajashekaran Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** **Bail Appl..No. 5150 of 2017 ()** **-------------------------------** ## **CRIME NO. 585/2017 OF VECHOOCHIRA POLICE STATION , PATHANAMTHITTA DISTRICT** **---------------------------** **PETITIONER:** **------------------** **RAJASHEKARAN NAIR, AGED 54 YEARS, S/O.LATE RAMAKRISHNAN NAIR, RESIDING THADATHIL, KUNNAM, VECHOOCHIRA P.O., CHETTACKKAL VILLAGE, PATHANAMTHITTA.** ## **BY ADV. SRI.MANU RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT/STATE:** **---------------------------------------------------------** **THE STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, VECHOOCHIRA POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. SAJJU.S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ## **RAJA VIJAYARAGHAVAN V., J ----------------------------------B.A. No.5150 of 2017** ## **----------------------------------Dated this the 20[th] day of November, 2017** ## **ORDER** - 1.This application is filed under section 438 of the Code of Criminal Procedure. - 2.A person by name Rachanakumar committed suicide by at - 12.30 p.m. on 12.7.2017 by setting himself ablaze after pouring some inflammable substance over his body. He was taken to the Medical College Hospital and was declared dead at 8.20 p.m. on the same day itself. - 3.On the next day, elder brother of the deceased gave information to the S.H.O., Vechoochira Police Station based on which Crime No.585 of 2017 was registered under section 174 of the Code of Criminal procedure. Later a suicide note, allegedly written by Rachanakumar,was recovered and the same was handed over to the police. In the suicide note it is stated as BA 5150/2017 2 follows: “ø¼È µáÎÞV, øÞ¼çÖ¶øX ÈÞÏV ®ÈßAß µOÈßAíåÈ×í¿ÎÞÏ Äáµ 108000, 91000, 36560, 35000 ÄøáÕÞX ©Ií Éçf ÈÞ{ßÄáÕæø ÄKßÜï ÌÞCáµÞøáæ¿ ÖÜc¢ æµÞIí ®ÈßAá ÈÞGßW ÈßWAáÕÞX ÕÏî ¦vÙÄcAá µÞøâ øÞ¼çÖ¶øX ÈÞÏøᢠØçÙÞÆøßÏáÎÞÃí. ®Kí R ø¼È µáÎÞV” - 4.Based on the contents of the suicide note, offence under section 306 ,406 and 420 of the IPC were added . - 5.The learned counsel appearing for the petitioner would submit that the petitioner is a critically ill person who has been diagnosed with Squamous Cell Carcenoma. According to the petitioner , deceased Rachanakumar was the care taker of the apartment where the petitioner used to reside. They became acquainted in course of time and noticing that the petitioner is a sick person the deceased approached him and suggested that they commence an incense stick manufacturing unit . After much discussions an unit was commenced as “Anandapuri Perfumery BA 5150/2017 3 Works”. A loan was availed from the Canara Bank for commencing the business and substantial sums were contributed by the petitioner as well. However, the business did not take off as expected. Loss was sustained. The deceased was under the belief that the petitioner had siphoned off large sums of money as commission. When the Bank initiated proceedings, the deceased started harassing the petitioner as well as his aged mother. He therefore approached the authorities and preferred Annexures- A2 and Annexure A3 . It is at that stage that the deceased committed suicide by setting himself ablaze outside his residential home. - 6.According to the learned Counsel, there is no direct act of instigation by the petitioner and no intentional act was committed by him. 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. He refers to decisions reported in **Sanju @ Sanjay Singh** BA 5150/2017 4 **Sengar V State of M.P.** [2002 SCC (Crl) 1141], **Dr.Krishnadas.P (Dr.) (Adv) V State of Kerala and Another** (2017 (2) KLT 579), and **Gurcharan Singh V State of Punjab** (2016 (12) SCALE 414) to bring home his point . - 7.The prayer of the petitioner is strongly opposed by the learned public prosecutor. It is submitted that the investigation has revealed that substantial amounts were misappropriated by the petitioner and this led to the business suffering huge losses. Let with no other option, the deceased had decided to take his own life . - 8.I have considered the submissions advanced and have gone through the materials on record. - 9.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, BA 5150/2017 5 being left with no option. In **S.S.Chheena v. Vijay Kumar Mahajan** [2010 KHC 4560] the Apex Court had occasion to hold as follows :- "27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) : (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 28. 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 is 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 that act must have been intended to push the deceased into such a position that he committed suicide. BA 5150/2017 6 29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation. 30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside." 10.The suicide note of the deceased would only reveal that he has decided to end his life due to the acts of the petitioner in refusing to pay the amounts due to him . Prima facie, the mere failure to pay the amount cannot be said to be a process of intentionally aiding a person to commit suicide. From the case diary, it does not appear that there is any positive act on the part of the petitioner BA 5150/2017 7 to instigate or aid in committing suicide. There has to be clear mens rea to commit the offence and there should also be an active or direct act which led the deceased to take the ultimate step. 11.In the facts as presented, I am of the considered view that no purpose would be served in compelling the petitioner herein to go behind bars. It does not appear to me that custodial interrogation of the petitioner is required in the instant case. The petitioner is critically ill and if he is arrested and subjected to custodial detention, it would only serve the object of injuring and humiliating him. It is not reported that the petitioner is a person with any antecedents or that he would commit similar offences if granted bail. However, necessary directions an be issued to ensure for a free, fair and full investigation without causing any unjust harassment, humiliation and unjustified detention of the petitioner. BA 5150/2017 8 ## 12.This petition will stand allowed on the following ## conditions:- i). The petitioner shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two solvent sureties each for the like sum. ii)The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 10 a.m., for one month or till final report is filed, whichever is earlier. iii)The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer. iv)The petitioner shall not commit any similar offence while on bail. v) If he surrenders before the court concerned, this order shall not be applicable and the jurisdictional court may pass appropriate orders. BA 5150/2017 9 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **Sd/RAJA VIJAYARAGHAVAN V., JUDGE** vps 22/11 /True Copy/ PS to Judge