T. Ratheesh v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936** ## **Crl.MC.No. 5947 of 2014 ()** **--------------------------SC.NO. 192/2013 OF PRINCIPAL DISTRICT COURT, THALASSERY, KANNUR -------------------** ## **PETITIONER/ACCUSED :** **------------------------------------** **T. RATHEESH, 30 YEARS S/O. SUKUMARAN, KAVERY SADAN, MARAKKAPU BEACH OZHINHAVALAPPU P.O., KANHANGAD, KOZHIKODE.** **BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **RESPONDENTS/STATE & COMPLAINANT :** **-------------------------------------------------------------** ## **1. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PIN - 682 031.** **2. STATION HOUSE OFFICER, VALAPATTANAM POLICE STATION, KANNUR DISTRICT- 670 010.** ## **3. K.P. AKILASHAN,** **S/O. VELAYUDHAN, KOZHIPARAMBIL HOUSE, AZHIKODE AMSOM, NERIKADU, KANNUR - 670 009.** ## **R1 & R2 BY PUBLIC PROSECUTOR SRI. R. GITHESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 5947 of 2014 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** **ANNEXURE A1 : COPY OF THE CHARGE IN SC 192/2013 OF PRINCIPAL DISTRICT COURT, THALASSERY. ANNEXURE A2 COPY OF THE COMPLAINANT DATED 30/7/2008 ON THE FILE OF JFCM II KANNUR FILED BY MISS K.P. HELINA.** ## **RESPONDENT'S ANNEXURES : NIL** **//TRUE COPY//** **P.S. TO JUDGE Mn** ## ALEXANDER THOMAS, J. ========================= Crl.M.C No.5947 of 2014 ============================ Dated this the 24[th] day of October, 2014 ## ORDER The petitioner's sister-in-law filed Annexure A2 private criminal complaint before the Judicial First Class Magistrate Court - II, Kannur on 30.07.2008 against her husband (petitioner's brother) alleging physical and mental torture. On 01.03.2009, the above said complainant died. The police alleged that the petitioner had illicit relationship with the above said deceased sister-in-law and that therefore, she committed the suicide. It is stated that the petitioner had no such relationship with the deceased sister-in-law and that the entire allegations levelled by the deceased is against her husband, who is the petitioner's brother. The contention of the petitioner is that the offence under Section 306 of the Indian Penal Code would not be attracted since it does not contain the ingredients in Section 107 of Indian Penal Code. The Police after investigated the above said case and filed the impugned Annexure A1 final report/charge sheet and the court below took cognizance of the case. Annexure A1 is the copy of the charge under Section 306 of the Indian Penal Crl.M.C No.5947 of 2014 2 Code (abetment of suicide) in S.C No.192 of 2013 on the file of the Principal District Court, Thalassery. 2. It is the case of the petitioner that the complaint as per Annexure A2 submitted by the complainant are allegations involving offence under Section 498A of Indian Penal Code against her husband and that the said case filed by the deceased does not contain any information as to any alleged illicit relationship by her with the petitioner and there was no allegations on that score against the petitioner and the entire allegations were made by the complainant against the petitioner's brother, who is the husband of the deceased complainant. Annexure A2 complaint is filed on 30.07.2008. The complainant committed suicide on 01.03.2009. It is in the conspectus of these facts and circumstances that the petitioner has filed the above said Crl.M.C seeking invocation of the inherent powers conferred on this Court under Section 482 of Code of Criminal Procedure with the prayer to quash Annexure A1 charge in Sessions Case No. 192 of 2013 on the file of the Principal District Court, Thalassery. Crl.M.C No.5947 of 2014 3 3. Heard Sri.Sunil Nair Palakkat, the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent-State of Kerala. 4. It is pointed out by the learned counsel for the petitioner that Section 306 of Indian Penal Code (abetment of suicide), provides as follows: “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 5. It is further submitted that action of abetment is an integral part to attract offence under Section 306 of Indian Penal Code and that Section 107 of Indian Penal Code deals with the abetment, provides as follows: “A person abets the doing of a thing, whoFirst:- Instigates any person to do that thing; or Secondly:- Engages with one or more other 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. ## 6. It is pointed out that petitioner has not done anything so as to attract Section 306 of Indian Penal Code and therefore it cannot be said that he committed the offence under Section 306 of Indian Crl.M.C No.5947 of 2014 4 Penal Code and that the allegations in the impugned criminal proceedings would not attract the essential ingredients of abetment. In this regard Sri.Sunil Nair Palakkad, learned counsel for the petitioner would rely on the decision of the Apex Court in the case Mangath Ram Vs. State of Haryana reported in AIR 2014 Sc 1782 held as follows: “Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under S.306 IPC, abetment must attract the definition thereof in S.107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of S.306 read with S.107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by act or illegal omission in the commission of suicide.” 7. The Apex Court has held in a catena of decisions as in **Gian Singh** v. **State of Punjab** reported in 2013 (1) SCC (Cri) 160, para 61 = (2012) 10 SCC 303 = 2012(4) KLT 108(SC), after surveying many rulings of the Apex Court on the point, has categorically held that the inherent power of the High Court under Sec.482 of the Cr.P.C. Is of wide plenitude with no statutory limitation and is to be exercised (i) to secure the ends of justice, or Crl.M.C No.5947 of 2014 5 (ii) to prevent the abuse of the process of any court (iii) to do real, complete and substantial justice. In Inder Mohan Goswasmi v. State of Uttaranchal reported in (2007) 12 SCC 1, the Apex Court has held that every High Court has the inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which the court exists or to prevent abuse of process of the court and it is contended by the learned counsel for the petitioners that the principles laid down by the Apex Court in those decisions would squarely apply in the facts of the present case. 8. The learned Public Prosecutor submitted that grant of the prayer for the quashment of the impugned criminal proceedings is not justified or warranted, taking into account the facts and circumstances of this case. 9. On consideration of the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor and on an evaluation of the totality of the facts and circumstances of this case, this Court is of the considered opinion that as of now, there is no necessity to invoke the extraordinary discretion conferred under Crl.M.C No.5947 of 2014 6 Section 482 of the Cr.P.C in the facts and circumstances of this case and that the petitioner should be relegated to other efficacious remedies like plea for discharge, provided the stage for consideration of such plea has not yet been crossed etc.. Faced with this situation the learned counsel for the petitioner would submit that the petitioner may be given the liberty to approach the court below with the plea for discharge and the same may be directed to be considered on merits and further that the petitioner may be permitted to move an appropriate application under Sec. 205 of the Cr.P.C. to exempt him from personal appearance during the consideration of the plea of discharge, till orders are passed thereon by the court below. 10. Accordingly, in the facts and circumstances of this case, it is ordered in the interest of justice that it is open to the petitioner to file appropriate application seeking the plea of discharge in this case before the court below and in case the stage for consideration of the plea of discharge has not yet been crossed, then the court below shall consider the same on merits and in accordance with law, after reasonable opportunity to the petitioner and the prosecution. Crl.M.C No.5947 of 2014 7 It is further ordered in the interest of justice that in case the petitioner file appropriate application under Sec. 205 of the Cr.P.C. seeking exemption of his personal appearance from the court below during the consideration of the plea of discharge until orders are passed thereon, the court below shall consider the said prayer and permit exemption from personal appearance of the petitioner during the stage of consideration of the discharge plea, until orders are passed thereon. With these observations and directions, the Crl.M.C. stands finally disposed of. Sd/ALEXANDER THOMAS, JUDGE. Vdv //True Copy// P.A to Judge