Anticipatory bail application allowed in a case of alleged abetment of suicide and cheating. High Court found prosecution materials insufficient to show instigation or aid in suicide, granting bail with specific conditions.
Release on bail by executing a bond of Rs. 50,000 with sureties; appearance before investigating officer.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939
Bail Appl..No. 8937 of 2017
(CRIME NO.1218/2016 OF CHERUPUZHA POLICE STATION, KANNUR DISTRICT)
PETITIONERS/ACCUSED NOS.1 AND 2
BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN
RESPONDENTS/COMPLAINANT & STATE:
BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02-02-2018, THE COURT ON 06-02-2018 PASSED THE FOLLOWING:
B.A.No.8937 of 2017
APPENDIX
PETITIONER'S ANNEXURES
AI : A TRUE COPY OF THE AGREEMENT ENTERED BETWEEN THE 2ND PETITIONER AND THE DECEASED.
A II: A TRUE COPY OF THE PLAINT IN O.S.NO.33 OF 2016 ON THE FILE OF SUB COURT, PAYYANNUR.
A III: A TRUE COPY OF THE STATEMENT FILED BY THE 2ND PETITIONER IN O.S.NO.33 OF 2016 ON THE FILE OF SUB COURT, PAYYANNUR.
RESPONDENTS' ANNEXURES
NIL
TRUE COPY
P.S TO JUDGE
“CR”
R.NARAYANA PISHARADI, J. *************************** B.A.No.8937 of 2017
Dated this the 6th day of February, 2018
O R D E R
This application for anticipatory bail is filed under Section 438 of the Code of Criminal Procedure, 1973.
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investigation, a suicide note was found out. It is stated in the suicide note that the petitioners and one Augustine (the third accused) are the persons responsible for the suicide. During the investigation, it was revealed that the deceased had got the suicide note prepared by an Advocate Clerk. A complaint addressed to the Sub Inspector of Police, Cherupuzha police station by the deceased was also found out. The deceased had got this complaint also prepared by the same Advocate Clerk. Later, the case was converted to one under Sections 420, 306, 406 and 201 read with 34 I.P.C.
also given an amount of Rs.14,00,000/- to the second accused, who is the son of the first accused, as advance for purchasing the property of the second accused. The first accused did not repay the money to the deceased. It is also alleged that the second accused did not execute sale deed of the property in favour of the deceased and that he was also not ready to return the amount of advance to the deceased. The first accused had executed a
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document in favour of the deceased as security for the loan availed of by him from the deceased. It is alleged that the third accused had managed to get back this document from the deceased under the guise of a mediator. According to the prosecution, the deceased committed suicide on account of the mental pain and agony caused to him by the petitioners by their acts of cheating. The prosecution alleges that the accused had abetted commission of suicide by the deceased.
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breach of promise or contract.
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hand, if all that is established that a representation or promise made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a Civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction (See International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v. Nimra Cerglass (P) Ltd : (2016) 1 SCC 348).
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instigates any person to do that thing; or 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 thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 IPC states that any wilful misrepresentation or wilful concealment of material fact which a person is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, active or direct act which led the deceased to commit suicide is essential to bring home the offence under Section 306 IPC. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in express words or may be by implied conduct. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. Positive act on the part of the
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accused to instigate or aid in committing suicide is necessary. There has to be a clear mens rea to commit the offence. It also
requires an active act or direct act on the part of the accused which led the deceased to commit suicide. The act of the accused must have been intended to push the deceased into such a position to compel him to commit suicide (See Chheena v. VijayKumar Mahajan: (2010) 12 SCC 190).
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the acts committed by the petitioners or the third accused which led and compelled the deceased to commit suicide. Mere mentioning the names of the accused in the suicide note, without particulars of the acts committed by them, is not sufficient to implicate the accused for the offence punishable under Section 306 I.P.C (See Netai Dutta v. State of West Bengal : AIR 2005 SC 1775 and State of Kerala v. Unnikrishnan Nair : AIR 2015 SC 3351).
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his life. These acts allegedly committed by the accused, prima facie, do not amount to instigation to commit suicide or intentionally giving aid in committing suicide. It is also significant that the deceased has stated in the complaint addressed to the Sub Inspector of Police that his wife and children were not allowing him to live with any peace of mind for the reason that the property was not got registered in his name.
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The prosecution has also no apprehension that on getting bail, the petitioners would abscond and flee from justice. At the same time, necessary directions can be issued for ensuring free, fair and full investigation.
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Magistrate's Court concerned.
In case of violation of any of the above conditions, the jurisdictional Court is empowered to consider the application for cancellation of bail, if any, made and pass appropriate orders in accordance with law.
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there is a need to indicate reasons for prima facie concluding why bail was being granted particularly where the accused is charged
of having committed a serious offence. It is also necessary for the court granting bail to reach prima facie satisfaction of the materials in support of the charge (See Prasad Shrikant Purohit v. State of Maharashtra : AIR 2017 SC 3986). In the peculiar facts and circumstances of the instant case, in order to consider whether the prosecution has got a strong prima facie case in regard to the accusation against the petitioners so as to deny them bail, it became necessary for this Court to consider some items of evidence in detail. Therefore, before parting with the case, I may hasten to clarify that the observations in this order regarding the merits of the prosecution case have been made only for the purpose of deciding the bail application and that the investigating officer, and the trial court in case of trial, shall form opinion untrammelled by such observations.
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr
True Copy
2 issues framed by the court
Whether the materials collected by the prosecution prima facie showed that the petitioners instigated or aided the suicide of the deceased under Section 306 IPC.
Whether the prosecution had a strong prima facie case to deny bail in a case involving alleged abetment of suicide and cheating.
Colour shows how this judgement treated each authority
International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v. Nimra Cerglass (P) LtdRelied on¶49
International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) v. Nimra Cerglass (P) Ltd : (2016) 1 SCC 348
Mohan v. StateReferred¶54
Mohan v. State : AIR 2011 SC 1238 · Who else cites this
Chitresh Kumar Chopra v. StateReferred¶55
Chitresh Kumar Chopra v. State : AIR 2010 SC 1446 · Who else cites this
Chheena v. Vijay Kumar MahajanRelied on¶61
Chheena v. VijayKumar Mahajan: (2010) 12 SCC 190 · Who else cites this
Netai Dutta v. State of West BengalReferred¶68
Netai Dutta v. State of West Bengal : AIR 2005 SC 1775 · Who else cites this
State of Kerala v. Unnikrishnan NairReferred¶68
State of Kerala v. Unnikrishnan Nair : AIR 2015 SC 3351 · Who else cites this
Puran v. RambilasReferred¶91
Puran v. Rambilas : AIR 2001 SC 2023 · Who else cites this
Prasad Shrikant Purohit v. State of MaharashtraReferred¶91
Prasad Shrikant Purohit v. State of Maharashtra : AIR 2017 SC 3986 · Who else cites this
Krishnadas v. State of KeralaReferred¶62
Krishnadas v. State of Kerala : 2017 (2) KHC 422
Sindhu Paul v. State of KeralaReferred¶62
Sindhu Paul v. State of Kerala : 2017 (5) KHC 543
3 provisions across 2 enactments
A.T.V. Damodaran
Rajesh.K
State of Kerala
R. Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
