STATE OF KERALA AND OTHERSversusS. UNNIKRISHNAN NAIR AND OTHERS

                         [2015] 9 S.C.R. 56


A               STATE OF KERALA AND OTHERS
                                  v.
              S. UNNIKRISHNAN NAIR AND OTHERS
                (Criminal Appeal No. 2086 of2014)
B
                         AUGUST 13, 2015
         [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
       Code of Criminal Procedure, 1973 - s. 482 -
c Jurisdiction under - Exercise of - Case relating to suicide
  by a person investigating a murder case as a Chief
  Investigating Officer and in the suicide note he held
  respondents-CB/ officers, advocate and magistrate,
  responsible for the situation - FIR lodged against
D respondents for offences punishable ulss. 182, 194, 195,
  195A and 306 /PC, on basis of the suicide note by the
  deceased - Quashing of FIR by High Court - Justification
  of, as regards quashing of offence uls. 306 - Held: Where
  no prima facie case is made out against the accused, then
E the High Court is obliged in law to exercise the jurisdiction u/
  s. 482 and quash the proceedings - On facts, suicide note
  really did not state about any continuous conduct of
  harassment, thus, the High Court was justified in quashing
  the proceeding - Penal Code, 1860 - s. 306.
F
        Dismissing the appeal, the Court

        HELD: 1.1 It is found from the narration of facts and
  the material brought on record that it is the suicide note
G which forms the fulcrum of the allegations and for proper
  appreciation of the same. On a plain reading of the same,
  it is difficult to hold that there has been any abetment by
  the respondents. The note, except saying that the
  respondents compelled him to do everything and
H cheated him and put him in deep trouble, contains
                                  56
STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN              57
              NAIRAND OTHERS

nothing else. The respondents were inferior in rank and A
it is surprising that such a thing could happen. That apart,
the allegation is really vague. It also baffles reason, for
the department had made him the head of the
investigating team and the High Court had reposed
complete faith in him and granted him the liberty to move B
the court, in such a situation, there was no warrant to
feel cheated and to be put in trouble by the officers
belonging to the lower rank. That apart, he has also put
the blame on the Chief Judicial Magistrate by stating that C
he had put pressure on him. He has also made the
allegation against the Advocate. [Para 13] [63-H; 64-A-D]

      1.2 The suicide note really does not state about any
continuous conduct of harassment. In such a situation,
the High Court was justified in quashing the proceeding, D
for it is an accepted position in law that where no prima
facie case is made out against the accused, then the High
Court is obliged in law to exercise the jurisdiction under
Section 482 of the Code and quash the proceedings.
[Para 18] [67-F-G]                                         E
  V.P Shrivastava v. Indian Explosives Limited and
  Others 2010 (11) SCR 788 : (2010) 10 sec 361 -
  relied on.
                                                           F
   Praveen Pradhan vs. State of Uttaranchal and
  Another 2012 (8) SCR 1129: (2012) 9 SCC 734 -
  distinguished.
  Netai Dutta vs. State of West Bengal (2005) 2 SCC 659;
  M. Mohan vs. State, Represented by the Deputy            G
  Superintendent of Police 2011 (3) SCR 437: (2011) 3
  SCC 626; Kishori Lal v. State of M.P 2007 (7)
  SCR 1051: (2007) 10 SCC 797; Analendu Pal Alis
  Jhantu v. State of West Bengal 2009 (15) SCR 836:
  (2010) 1 sec 707 - referred to.                          H
58         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A                          Case Law Reference
     2012 (8) SCR 1129            distinguished.       Para 17
     (2005) 2 sec 659             referred to.         Para 9
     2011 (3) SCR 437             referred to.         Para 9
B    2007 (7) SCR 1051            referred to.         Para 11
     2009 (15) SCR 836            referred to.         Para 12
     2010 (11) SCR 788            relied on.           Para 18
          CRIMINAL APPELLATE JURISDICTION : Criminal
c Appeal No. 2086 of 2014
         From the Judgment and Order dated 14.12.2012 of the
     High Court of Kerala at Ernakulam in Crl. M.C. No. 3688 of
     2012
D
          L. Nageshwara Rao, Ramesh Babu M.R., Abdul Rashed
     for the Appellants.

         Prashant Bhushan, Govindjee, 0. Kuttan, P. K. Dey, T.A.
E    Khan, B.V. Balaram Das for the Respondents.

          The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. The seminal question that
  emerges for consideration in this appeal is whether the High
F Court of Kerala at Ernakulam, is justified in quashing the F.l.R.
  lodged against the respondents for the offences punishable
  under Sections 182, 194, 195, 195A and 306 of the Indian
  Penal Code in exercise of jurisdiction under Section 482 of
  the Code of Criminal Procedure by the impugned order dated
G 141h December, 2012.

       2. At the outset, we must state that Mr. L. Nageshwar Rao,
  learned senior counsel apoearing for the State has submitted
  that there is no grievance as far as the quashment of the
H offences punishable under Sections 182, 194, 195, 195Al.P.C.
STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN                     59
       NAIR AND OTHERS [DIPAK MISRA, J.]

is concerned. Therefore, the central challenge pertains to A
quashing of the offence punishable under Section 3061.P.C.

      3. The facts in detail need not be stated, for the controversy
really lies in a narrow compass. As the factual matrix would
unfurl, one Sampath was alleged to have been beaten to death B
by the investigating agency, that is, the State police, while he
was in custody. His brother, Murukeshan, preferred W.P.(C)
No.13426 of 2010 and during the pendency of the writ petition,
he filed I.A. No.16944 of 2010. His prayer was basically for
issuance of a direction to the Director, Central Bureau of c
Investigation (C.B.I.) to submit a detailed report regarding the
investigation so far conducted and production of the entire case
diary. As is manifest, he was not satisfied with the investigation
conducted by the State police and his prayer was for better
and more rigorous investigation. Be it noted, the High Court D
by an earlier order had directed the C.B.I. to investigate as
there were certain allegations against the State police.

     4. While dealing with the interlocutory application filed by
Murukeshan, the brother of Sampath, the High Court has E
opined thus:

  ''The re-constitution ofthe investigation team by inducting
  one Haridath as the Chief Investigating Officer, naturally
  engendered a fear in the mind of the petitioner that some       F
  attempt was afoot to deflect the course of investigation.
  It is that fear which has necessitated this application."

     From the aforesaid, it is clear as crystal that Haridath was
the Chief Investigating Officer. After the investigating team G
was constituted by the higher officer, the High Court, as the
order would further unveil, had given immense protection to
Haridath as far as investigation is concerned. We may profitably
reproduce the said paragraph hereunder:
                                                                  H

                                                                       •
60         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A      "The induction of Haridath at the helm of affairs in the
       investigation of Sampath Murder Case need not cause
       any concern either to the petitioner or to anybody else.
       Haridath is believed to be an officer of proven integrity
       and of bold disposition. He shall, however, submit a report
B      every three weeks, under intimation to this Court, to the
       Chief Judicial Magistrate, Ernakulam, regarding the
       progress of the investigation. The Chief Judicial
       Magistrate shall also monitor the investigation and if need
       be call for the case diary for his perusal. The present
c      team of investigation shall not be dislocated or changed
       without the orders of this Court. Should any member of
       the investigating team feel that there is any interference
       with his freedom eitherfrom the C.B.I. or from elsewhere,
       such member shall be free to address this Court through
D
       the Registrar General in a sealed cover."

          5. The aforesaid paragraph makes it quite vivid that the
     High Court had really reposed faith in Haridath and also granted
     him freedom to investigate and liberty to address the court
E    through the Registrar General in a sealed cover. The said
     order was passed on 22"d December, 2010.

          6: The said Haridath was assisted by a team of officers
     which included the respondent Nos.1 and 2. While the
F    investigation was in progress, Haridath committed suicide on
     151h March, 2012, leaving behind a suicide note. The said
     note reads as follows:

       "Rajan and Unnikrishnan (CBI TVPM) are responsible
G      for my this situation. Nobody else has any role in this.
       They who compelled me to do everything and cheated
       me and put me in deep trouble. Advocate Seekumar
       also has some role. CJM Sri Vijayan also put pressure
       on me.
H      Nobody else has any role in this."
STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN                        61
       NAIR AND OTHERS [DIPAK MISRA, J.]

      On the basis of the aforesaid suicide note, the criminal       A
      law was set in motion and the respondents were arrayed
      as accused. The said situation compelled them to invoke
      the inherent jurisdiction of the High Court under Section
      482 of the Code of Criminal Procedure, and eventually,
      as has been stated earlier, the High Court quashed the         B
      same.

      7. It is submitted by Mr. Rao, learned senior counsel that
the High Court has fallen into gross error by quashing the
criminal proceeding inasmuch as it is a fit case where there         c
should have been a trial. He has taken us through the statement
of the wife of the deceased and the other witnesses. Learned
senior counsel has also commended us to the authority in
Praveen Pradhan vs. State of Uttarancha/ and Another1 ,
to show that the instant case is one where ingredients of D
Section 107 of I. P. C. have been met with.

         8. Mr. P.K. Dey, learned counsel appearing forthe C.B.I.,
has also supported the submissions of Mr. Rao.
                                                                     E
         9. Mr. Prashant Bhushan, learned counsel appearing for
the respondent Nos.1 and 2, per contra, would contend that
the High Court has justifiably quashed the investigation, for
Haridath, the deceased, was holding a superior rank and there
is nothing to suggest that the respondents had instigated him        F
or done any activity that had left the deceased with no option
but to commit suicide. He has placed reliance upon Netai
Dutta vs. State of West Bengaf2 and M. Mohan vs. State,
Represented by the Deputy Superintendent of Police 3 .
                                                                     G
     10. To appreciate the rivalised submissions in the
obtaining factual matrix, it is necessary to understand the

1
    (2012) s sec 734
2
    (2005) 2   sec 659
3
    (2011) 3   sec 626                                               H
62             SUPREME COURT REPORTS                       [2015] 9 S.C.R.


A concept of abatement as enshrined in Section 107 IPC. The
  said provision reads as follows:-

          "107. A person abets the doing of a thing, who-

          First - Instigates any person to do that thing; or
B
          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
c
          Thirdly- Intentionally aids, by any act or illegal omission,
          the doing of that thing.

          Explanation 1. - A person who, by wilful
D         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 instigate the doing of that thing.

E         Explanation 2 - Whoever, either prior to or at the time of
          commission of an act, does anything in order to facilitate
          the commission of that act, and thereby facilitates the
          commission thereof, is said to aid the doing of that act."

F          11. The aforesaid provision was interpreted in Kishori
     Lal v. State of M.P. 4 by a two-Judge Bench and the discussion
     therein is to the following effect:-

          "Section 107 IPC defines abetment of a thing. The offence
          of abetment is a separate and distinct offence provided
G         in IPC. A person, abets the doing of a thing when (1) he
          instigates any person to do that thing; or (2) engages
          with one or more other persons in any conspiracy for the
          doing of that thing; or (3) intentionally aids, by act or illegal
H    4
         (2007) 1o sec 797
    STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN                         63
           NAIR AND OTHERS [DIPAK MISRA, J.]

         omission, the doing of that thing. These things are              A
         essential to complete abetment as a crime. The word
         "instigate" literally means to provoke, incite, urge on or
         bring about by persuasion to do any thing. The abetment
         may be by instigation, conspiracy or intentional aid, as
         provided in the three clauses of Section 107. Section            B
         109 provides that if the act abetted is committed in
         consequence of abetment and there is no provision for
         the punishment of such abetment, then the offender is to
         be punished with the punishment provided for the original
         offence. "Abetted" in Section 109 means the specific             c
         offence abetted. Therefore, the offence for the abetment
         of which a person is charged with the abetment is normally
         linked with the proved offence."

        12. In Analendu Pal Alis Jhantu v. State of West D
    Benga/5 dealing with expression of abetment the Court
    observed:-

         "The expression "abetment" has been defined under
         Section 107 IPC which we have already extracted above.           E
         A person is said to abet the commission of suicide when
         a person instigates any person to do that thing as stated
         in clause Firstly or to do anything as stated in clauses
         SecondlyorThirdlyofSection 107 IPC. Section 109 IPC
         provides that if the act abetted is committed pursuant to        F
         and in consequence of abetment then the offender is to
         be punished with the punishment provided for the original
         offence. Learned counsel for the respondent State,
         however, clearly stated before us that it would be a case
         where clause Thirdly of Section 107 IPC only would be            G
         attracted. According to him, a case of abetment of suicide
.        is made out as provided for under Section 107 IPC."

            13. As we find from the narration of facts and the material
                                                                          H
    5
        (201 oi 1 sec 707
64         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A brought on record in the case at hand, it is the suicide note
  which forms the fulcrum of the allegations and for proper
  appreciation of the same, we have reproduced it herein-before.
  On a plain reading of the same, it is difficult to hold that there
  has been any abetment by the respondents. The note, except
B saying that the respondents compelled liim to do everything
  and cheated him and put him in deep trouble, contains nothing
  else. The respondents were inferior in rank and it is surprising
  that such a thing could happen, That apart, the allegation is
  really vague. It also baffles reason, for the department had
C made him the head of the investigating team and the High
  Court had reposed complete faith in him and granted him the
  liberty to move the court, in such a situation, there was no
  warrant to feel cheated and to be put in trouble by the officers
  belonging to the lower rank. That apart, he has also put the
0
  blame on the Chief Judicial Magistrate by stating that he had
  put pressure on him. He has also made the allegation against
  the Advocate.

          14. In Netai Dutta (supra), a two-Judge Bench, while
E    dealing with the concept of abetment under Section 1071.P.C.
     and, especially, in the context of suicide note, had to say this:

       "In the suicide note, except referring to the name of the
       appellant at two places, there is no reference of any act
F      or incidence whereby the appellant herein is alleged to
       have committed any wilful act or omission or intentionally
       aided or instigated the deceased Pranab Kumar Nag in
       committing the act of suicide. There is no case that the
       appellant has played any part or any role in any
G      conspiracy, which ultimately instigated or resulted in the
       commission of suicide by deceased Pranab Kumar Nag.

       Apart from the suicide note, there is no allegation made
       by the complainant that the appellant herein in any way
H      was harassing his brother, Pranab Kumar Nag. The case
      STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN                      65
             NAIR AND OTHERS [DIPAK MISRA, J.]

         registered against the appellant is without any factual         A
         foundation. The contents of the alleged suicide note do
         not in anyway make out the offence against the appellant.
         The prosecution initiated against the appellant would only
         result in sheer harassment to the appellant without any
         fruitful result. In our opinion, the learned Single Judge       B
         seriously erred in holding that the First Information Report
         against the appellant disclosed the elements of a
         cognizable offence. There was absolutely no ground to
         proceed against the appellant herein. We find that this is
         a fit case where the extraordinary power under Section          c
         482 of the Code of Criminal Procedure is to be invoked.
         We quash the criminal proceedings initiated against the
         appellant and accordingly allow the appeal."

           15. In M. Mohan (supra), while dealing with the abatement,    D
      the Court has observed thus:

        "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             E
        instigate or aid in committing suicide, conviction cannot
        be sustained.

        The intention of the Legislature and the ratio·ofthe cases
        decided by this court are clear that in order to convict a       F
        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 this act must have been intended
        to push the deceased into such a position that he/she            G
        committed suicide."
...         16. As far as Praveen Pradhan (supra), is concerned,
      Mr.. Rao, has emphatically relied on it for the purpose that the
      Court had declined to quash the F.l.R. as there was a suicide      H
66        SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A note. Mr. Rao has drawn out attention to paragraph 10 of the
  judgment, wherein the suicide note has been reproduced. The
  Court in the said case has referred to certain authorities with
  regard to Section 107 I. P.C. and opined as under:

B     "In fact, from the above discussion it is apparent that
      instigation has to be gathered from the circumstances of
      a particular case. No straight-jacket formula can be laid
      down to find out as to whether in a particular case there
      has been instigation which force the person to commit
c     suicide. In a particular case, there may not be direct
      evidence in regard to instigation which may have direct
      nexus to suicide.

      Therefore, in such a case, an inference has to be drawn
D     from the circumstances and it is to be determined whether
      circumstances had been such which in fact had created
      the situation that a person felt totally frustrated and
      committed suicide. More so, while dealing with an
      application for quashing of the proceedings, a court
E     cannot form a firm opinion, rather a tentative view that
      would evoke the presumption referred to under Section
      228 Cr.P.C.

      Thus, the case is required to be considered in the light of
F     aforesaid settled legal propositions.

      In the instant case, alleged harassment had not been a
      casual feature, rather remained a matter of persistent
      harassment. It is not a case of a driver; or a man having
G     an illicit relationship with a married woman, knowing that
      she also had another paramour; and therefore, cannot
      be compared to the situation of the deceased in the
      instant case, who was a qualified graduate engineer and
      still suffered persistent harassment and humiliation and
                                                                    -
H     additionally, also had to endure continuous illegal
STATE OF KERALA AND OTHERS v. S. UNNIKRISHNAN                      67
       NAIR AND OTHERS [DIPAK MISRA, J.]

     demands made by the appellant, upon non-fulfillment of        A
     which, he would be mercilessly harassed by the appellant
     for a prolonged period of time. He had also been forced
     to work continuously for a long durations in the factory,
     vis-a-vis other employees which often even entered to
     16-17 hours ata stretch. Such harassment, coupled with        B
     the utterance of words to the effect, that, "had there been
     any other person in his place, he would have certainly
     committed suicide" is what makes the present case
     distinct from the aforementioned cases considering the
     facts and circumstances of the present case, we do not        c
     think it is a case which requires any interference by this
     court as regards the impugned judgment and order of
     the High Court."

     17. We have quoted in extenso from the said judgment D
and we have no hesitation in stating that the suicide note therein
was quite different, and the Court did think it appropriate to
quash the proceedings because of the tenor and nature of the
suicide note. Thus, the said decision is distinguishable regard
being had to the factual score exposited therein.                  E

     18. Coming to the case at hand, as we have stated earlier,
the suicide note really does not state about any continuous
conduct of harassment and, in any case, the facts and
circumstances are quite different. In such a situation, we are F
disposed to think that the High Court is justified in quashing
the proceeding, for it is an accepted position in law that where
no prima facie case is made out against the accused, then
the High Court is obliged in law to exercise the jurisdiction
under Section 482 of the Code and quash the proceedings. G
[See V.P. Shrivastava v. Indian Explosives Limited and
Others6]

        19. Before parting with the case, we are impelled to say
6
    (2010) 10 sec 361                                              H
68           SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A something. Mr. Bhushan, learned counsel appearing for the
  respondent No. 1 & 2 has drawn our attention to a facet of
  earlier judgment of the High Court wherein it has been
  mentioned that at one time the deceased was pressurised by
  some superior officers. We have independently considered
B the material brought on record and arrived at our conclusion.
  But, regard being had to the suicide note and other concomitant
  facts that have been unfurled, we are compelled to recapitulate
  the saying that suicide reflects a "species offear". It is a sense
  of defeat that corrodes the inner soul and destroys the will
C power and forces one to abandon one's own responsibility.
  To think of self-annihilation because of something which is
  disagreeable or intolerable or unbearable, especially in a.
  situation where one is required to perform public duty, has to
  be regarded as a non-valiant attitude that is scared of the
0
  immediate calamity or self-perceived consequence. We may
  hasten to add that our submission has nothing to do when a
  case under Section 306 IPC is registered in aid of Section
  113Aofthe Evidence Act, 1872.
E         20. In the result, we do not perceive any merit in the appeal
     and the same stands dismissed accordingly.

     Nidhi Jain                                        Appeal dismissed.