Dismissed

Abhijit Dowerah v. the State of Assam and Anr.

Gauhati HC21 Sept 2022Crl.Pet./658/2022

Case brief

AI extract

What is this about?

The High Court rejected the petitioner's prayer to quash criminal proceedings for allegedly abetting suicide or quashing the charge sheet. The court distinguished the case from Velladurai due to specific injuries found in the post-mortem report and held that abetment of suicide does not require official sanction under CrPC.

What did the court decide?

The criminal petition was dismissed without issuing notice to the respondents; the stay of trial was also refused.

Abhijit Dowerah Vs the State of Assam and Anr. — Murder and Culpable Homicide | Gauhati HC (2022)

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GAHC010134492022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet./658/2022

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ABHIJIT DOWERAH

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S/O MRIGENDRA NATH DOWERAH, R/O R.G.B. ROAD, NEAR GUWAHATI CENTRAL MALL, P.O.-ZOO ROAD, P.S.-DISPUR, GUWAHATI, DISTKAMRUP(M), ASSAM, PIN-781024

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VERSUS

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THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:UTTAM BARMAN S/O LATE SUREN BARMAN R/O VILL-SIDLI P.S.-SIDLAI DIST-CHIRANG (BTAD) ASSAM PIN-78337

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Advocate for the Petitioner : MR Z KAMAR

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 21-09-2022

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Heard Mr. Z. Kamar, learned counsel for the petitioner. Also heard Mr. Bhaskar Sarma, learned Addl. P.P. appearing for the State respondent no.1.

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By filing this criminal petition under section 482 Cr.P.C., the petitioner has prayed for quashing of the proceedings of G.R. Case No. 60/2021 under sections 120B/306/323 IPC, including the charge-sheet no. 70/2021 submitted in the said case. The said case is presently pending before the Court of the learned Judicial Magistrate, First Class, Bijni.

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As charge-sheet no. 70/2021 dated 30.06.2021 had been submitted against the petitioner in connection with the aforementioned case, prior to issuance of notice on the respondents, by order dated 18.07.2022, the Court had called for the scanned copy of the inquest report and post mortem report from the Court of Sub Divisional Judicial Magistrate (M), Bijni. The same has been received. Moreover, the learned counsel for the petitioner had also produced a copy of the post mortem report.

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The learned senior counsel for the petitioner had submitted that the petitioner is a Government servant and presently posted as the Range Officer, Panbari Forest Range, Panbari, Chirang District under BTC. On 31.01.2021, the petitioner had lodged an FIR with the Officer-In-Charge, Panbari Police Station, Chirang, inter alia, stating that on 31.01.20201 at about 1.30 am, one Utpal Barman had hanged himself from a tree within the Range campus.

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In the FIR, it was stated that on 03.01.2021, a plan was hatched by the Forest staff of Gaharkunda Beat and accordingly, they killed and consumed a porcupine on the same day. Thereafter, an enquiry was started under Wildlife Protection Act, 1972 as the crime attracts imprisonment. It was stated that on 28.01.2021, Utpal Barman was produced before the Field Director to look into the matter, but he denied all allegations of misconduct against him. Then on 30.01.2021, four staffs those who were involved in the act were brought to Barpeta Road for further questioning and three staffs named therein had stated that Utpal Barman was the mastermind, but he totally denied the same. All four were brought to Range Office and they were asked to stay for the night as it was late and that they would be assigned respective beat duty on the next day. Moreover the mother and brother of the said Utpal Barman were cordially requested that Utpal Barman should accept his transfer near to his home town. All four staff were given separate beds and Utpal Barman was told to sleep in the wireless station room along with Sayad Chan Mohan Hazarika. It was stated that the petitioner and FR-I came to their quarter to sleep and at 1.30 am, Sayad Chan Mohan Hazarika informed the petitioner that Utpal Barman had committed suicide by hanging himself on a tree. It was stated by Sayad Chan Mohan Hazarika that Utpal Barman was sleeping beside him and at 1.15 am, he woke up and found Utpal Barman missing and when he became suspicious, he went out to look for Utpal Barman with some other staff and noticed Utpal Barman hanging from a tree. Hence, the information was given to Panbari P.S. for doing necessary formalities.

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It was submitted that the petitioner was performing his duty as

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Forest Range Officer and that a beat staff under the petitioner had committed suicide. Therefore, unnecessarily the petitioner is made an accused in the case by an FIR lodged by Uttam Barman, the brother of the deceased, which was lodged on 01.02.2021.

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It was submitted that the FIR by the petitioner was first in point of time and therefore, the police ought to have carried out their investigation on the basis of the FIR lodged by the petitioner. It was submitted that the deceased, namely, Utpal Barman, who was a forest staff, had killed and consumed the porcupine, which is an offence under the Wildlife Protection Act, 1972 and moreover, there were previous complaints against him of alcoholism for which an enquiry was being conducted and thus, perhaps unable to cope up, he had taken a path of committing suicide. It was submitted that the petitioner was nowhere in the site of Wireless room, where the said Utpal Das was asked to stay in the night and that he was kept with Sayad Chan Mohan Hazarika, another Forest staff.

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Moreover, it was submitted that the ingredients of section 107 of the I.P.C. was totally absent in this case and therefore, the charge-sheet was mechanically filed by the I.O., by ignoring the FIR lodged by the petitioner. It was submitted that even if the allegations contained in the FIR lodged by Uttam Barman was assumed to be correct, then also no case for abetment of suicide was made out against the petitioner and therefore, there was a bleak and/or remote chance of his conviction. Moreover, it was submitted that there was no mens rea for committing the alleged offence under section 306 and 302 of the IPC, as he would not gain in any manner. Moreover, it was also submitted that

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the petitioner had not assaulted the deceased Utpal Barman and therefore, offence under section 323 IPC was also not made out against the petitioner.

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It was further submitted that the legislative intention for providing the provision of section 197 Cr.P.C. was to create a safeguard that the public servants are not unnecessarily harassed, otherwise the Government servants would not be able to perform their duties. Thus, it was submitted that non-obtaining of sanction for prosecution was fatal for the prosecution.

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Accordingly, the learned senior counsel for the petitioner has prayed for issuance of notice upon the respondents and till hearing of the matter, for stay of the proceedings of GR Case No. 60/2021, pending before the Court of the learned Sub- Divisional Judicial Magistrate (M), Bijni, Chirang.

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In support of his submissions, the learned senior counsel for the petitioner has relied on the case of Velladurai v. State, represented by the Inspector of Police, 2021 SCC OnLine SC 715.

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The learned Addl. P.P. has made his submissions to oppose the prayer made by the learned senior counsel for the petitioner.

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It would be relevant to refer to the contents of the FIR dated 01.02.2021, lodged before the Superintendent of Police, Chirang by one Uttam Barman, the brother of the deceased. The gist of the allegations was to the effect that Utpal Barman, his deceased brother, while working as Forest Guard had recovered a porcupine and had given it a proper care. On 04.01.2021, his

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brother found the porcupine missing and later on found its carcass in the vicinity of other forest guards and he was informed that the other guards had killed the porcupine in the night of 03.01.2021 and had eaten it. Then he made a complaint to the petitioner, who was the Forest Ranger, but he leaked the information to the other guards as a result, his brother was brutally assaulted. Thereafter, when the deceased had complained about the assault, he was asked to leave and he was informed by the petitioner that arrangement would be made to transfer him to another place. It was further alleged that thereafter, in the name of departmental enquiry, the petitioner had called his brother and then Utpal Barman, with his nephew had gone to the Office of the Director, Manas National Park, where in the presence of another person the petitioner had demanded that his brother should withdraw his complaint and to pay a ransom of Rs.5.00 lakh otherwise his brother would be implicated for committing offence under Wildlife Protection Act. On refusing to pay ransom, his brother was assaulted and threatened of dire consequences. It was further alleged that his brother and mother were called from various mobile phone numbers (mentioned in FIR), and it was also stated that in the pen drive enclosed with the FIR, mobile voice recording of incidents which happened on 28.01.2021 in the office of the Director was given. His brother was again called in the Panbari Range Office on 30.01.2021, where he went with his mother and another brother. Utpal Barman, the deceased brother was then taken to the office of the Director, Manas National Park where he was detained for about 12 hours. While his mother and another brother were waiting outside, the deceased brother was again assaulted with sticks, kicks, blows, etc. and his mother and brother could see the injury on the wrist, back, knee and buttocks of his deceased brother. The petitioner then asked informant’s mother and

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brother to leave as he would take the deceased brother to Panbari Range Office and the petitioner then took his brother in custody at Panbari Forest Range. Then on 31.01.2021, the mother of the informant had received a phone call from a mobile number mentioned therein that his brother had met with an accident and when they went to Panbari Range Office and saw his brother hanging from a tree. It was also stated that he was present during inquest and saw injuries of various description on the body of his brother.

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It is seen from the post mortem report that the dead body had following injuries, viz., (1) Bruise on whole backside and both buttocks; (2) bruise mark 4 X 1 inch size on back of right thigh 5 inch above popliteal fossa; (3) pressure impression of finger on front of lower part of neck 3 in number. As per the said report, the “Ligature mark is transverse two in number on left side of neck situated just above thyroid notch which is continuous with fracture of underlying hyoid bone Size of mark is __ (illegible) X 1 inch. Knot is situated on posterolateral aspect of neck on left side, at a distance of 4 inch from left earlobe measuring 1.5 X 1.5 inch size. On cut section underlying neck tissue are dry white, glistering and parchmentised. Other tissues are healthy.”

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Therefore, in view of the nature of injury mentioned in the post mortem report, it cannot be said that no case is made out for trial. Moreover, the allegation in the FIR is specific to the effect that the deceased was assaulted in Forest Range Office and also in the Office of the Director, Manas National Park, which matches with the injuries mentioned in the inquest report and the post mortem report and in light of above, it cannot be said that the case is not required to be tried. Moreover, it is alleged in the FIR that in the night of

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30.01.2021, Utpal Barman, the deceased was detained in custody of the petitioner, who was the Forest Ranger, and the mother and the brother of the deceased were asked to leave the Panbari Range Office and thereafter, the victim had died due to hanging in the intervening night of 30.01.2021 and 31.01.2021. It is not acceptable that no trial would be required to arrive at the truth.

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In the case of Velladurai (supra), cited by the learned senior counsel for the petitioner, the background facts was that the appellant therein had married the deceased 25 years back. They had three children, one married daughter living separately, and two sons working at Chennai and Kerala respectively. On the date of occurrence, there was some quarrel between the appellant and the deceased and the deceased consumed pesticide. It transpired that on a previous occasion also the deceased had consumed pesticide and she was hospitalized and subsequently discharged after 4 (four) days. Under the above factual matrix, the Supreme Court of India had observed as follows:-

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9 . Now so far as the offence under Section 306 IPC is concerned, in a case where if any person instigates other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished for the offence under Section 306 IPC for abetting the commission of suicide. Therefore, in order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide. As observed and held by this Court in the case of Amalendu Pal (supra), mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC.

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15 . Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other

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option except to commit suicide. In the instant case, the allegation against the appellant is that there was a quarrel on the day of occurrence. There is no other material on record which indicates abetment. There is no material on record that the appellant-accused played an active role by an act of instigating the deceased to facilitate the commission of suicide. On the contrary, in the present case, even the appellant-accused also tried to commit suicide and consumed pesticide. Under the circumstances and in the facts and circumstances of the case and there is no other material on record which indicates abetment, both the High Court as well as the learned trial Court have committed an error in convicting the accused for the offence under Section 306 IPC.

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Now coming to the case in hand, in the FIR dated 01.02.2021, the informant, i.e. respondent no. 2 has specifically narrated the sequence of events, which are already mentioned herein before and therefore, the same has not been repeated herein. Prima facie, the contents of the FIR discloses that the deceased was beaten up at least on three occasions, first time after complaint was made on 04.01.2021; second time when he was called for the purported departmental enquiry in the campus of the Director, Manas National Park on 28.01.2021; and again on 30.01.2021, in the campus of the Director, Manas National Park; then he was taken under custody and taken to Panbari Range Office; his mother and brother was asked to go; and thereafter he had committed suicide. Thus, on facts, the present case is distinguishable with the case of Velladurai (supra), cited by the learned senior counsel for the petitioner.

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In so far as the submissions made to the effect that the police ought to have investigated the FIR dated 31.01.2021, which was lodged by the petitioner first in point of time, the Court is of the considered opinion that the informant also has an interest in lodging the FIR, as his brother had died and he

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suspects the hand of the petitioner in the murder of his brother, namely, Utpal Barman because it was stated in the FIR that his brother was assaulted and then killed.

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Therefore, in the light of the materials before us, we are not satisfied that the petitioner's case falls within the principle enunciated in the case of T.T. Antony v. State of Kerala, (2001) 6 SCC 181, where it was laid down that there cannot be a second FIR of the same incident. In this case in hand, in the FIR dated 31.01.2021, lodged by the petitioner, it was projected that Utpal Barman had committed suicide and it did not contain any statement that the body of the said Utpal Barman contained injury marks. However, in the FIR dated 01.02.2021, the informant, Uttam Barman, the brother of the deceased had given details of injury he saw in the dead body of Utpal Barman, which is not in variance with the injuries described in the post mortem report. It is not the case of the petitioner that he is being prosecuted twice for the same offence.

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In his FIR, the petitioner had projected that the said Utpal Das was sent to spend night in Wireless room and his mother and brother were sent away. The next day’s beat duty was not assigned to the deceased at the night. However, no apparent reason was disclosed in the FIR dated 31.01.2021, as to why the deceased was made to stay over-night in a Wireless Room in the Forest Range Office, which is obviously not a mess for forest staff to stay in the night. In his FIR, the petitioner has not stated anything about injury on the body of Utpal Barman. But then it is not explained how several injuries came to be inflicted on the body of the deceased. Thus, the Court is unable to find fault if

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the investigation was carried out on the basis of FIR dated 01.02.2021, lodged by Uttam Barman. Thus, in the considered opinion of the Court, the FIR dated 01.02.2021, cannot be quashed it prima facie appears that in his FIR dated 31.01.2021, the petitioner had not made a mention about various ante mortem injuries suffered by the deceased.

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In the case of State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540, the Supreme Court of India, in paragraphs 10-12 thereof has observed as follows:-

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“ 10 . In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC 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, (1992) Supp (1) SCC 335. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows:

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"102. (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.

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(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.

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(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.

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(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.

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(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.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(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."

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11 . As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hardand-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 and Raghubir Saran (Dr.)

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v. State of Bihar, AIR 1964 SC 1.] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, (1990) Supp SCC 686, State of Bihar v. P.P. Sharma, (1992) Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, State of Kerala v. O.C. Kuttan, (1999) 2 SCC 651, State of U.P v. O.P Sharma, (1996) 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.]

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12 . The above position was again reiterated in State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 and State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691.”

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The offence of abetment of suicide is not an action taken in course of performing official duty. Therefore, in the considered opinion the sanction for prosecution is not required in such cases.

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As discussed herein before, the Court is unable to hold that the impugned FIR dated 01.02.2021, which was registered as Panbari P.S. Case No. 15/2021 under sections 120B/387/325/302 IPC, corresponding to GR Case No. 60/2021 does not disclose commission of any cognizable offence at all. Thus no case for quashing of the said FIR, or charge-sheet submitted therein has been made out.

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Accordingly, in light of the discussions above, the Court is not

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inclined to stay the trial of G.R. Case No. 60/2021 under sections 120B/306/323 IPC, pending before the Court of the learned Judicial Magistrate First Class, Bijni.

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Therefore, this criminal petition is dismissed at the ‘motion stage’ without issuance of notice upon the respondents.

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Before parting with the records, it is clarified that the observations made in order is only for deciding this criminal petition and therefore, the observations are not intended to constitute the final opinion of the Court on merit. Therefore, none of the observations made herein shall cause any prejudice to the petitioner at any stage of the trial, which would be decided in its own merit, uninfluenced by this order.

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JUDGE

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Comparing Assistant

Abhijit Dowerah v. the State of Assam and Anr.

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Abhijit Dowerah v. the State of Assam and Anr.

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