Court: Kerala High Court
Bench: JUSTICE Raja Vijayaraghavan V
Sindhu Paul and Ors. vs. State of Kerala and Ors. On 13 Novenber 2017
Law Point:
Abetment to suicide – In order to convict person u/s 306 IPC, there has to be clear mens rea to commit offence and that there ought to be active or direct act leading deceased to commit suicide, being left with no option.
JUDGEMENT
1. Gouri Nekha, a X Standard student of the Trinity Lyceum School, Kollam ended her own life by leaping from the third floor of her School in a heartrending incident which took place on 20.10.2017. Though all attempts were made, her life could not be saved. Alleging that the suicide of the child was instigated by the incessant humiliation and harassment meted out on her by the petitioners herein, who are teachers of the VIII and X Standard respectively of the said School, they have been arrayed as accused and are being proceeded against for having committed offence punishable under section 305 of the IPC. It is in the above background that this petition has been filed by the teachers seeking pre-arrest bail.
2. The gist of the allegations against the petitioners as is borne out from the statement filed before this Court by the Investigating officer is as under :
“(a) Deceased Gouri Nekha and her younger sister Meera Kalyan were studying in the Trinity Lyceum School, Kollam in X-A and VIII-D respectively. The 1st petitioner is the class teacher of Meera Kalyan and the 2nd petitioner is the class teacher of deceased Gouri Nekha.
(b) A few days prior to the incident, the 1st petitioner on finding that Meera Kalyan was talkative in class, asked her to sit among the boys. This was not to the liking of Meera Kalyan. She complained to her parents. On the next day itself, her parents came to the School and expressed their disapproval to the School Principal. The Principal, it seems, gave instructions to the 1st petitioner to refrain from disciplining Meera Kalyan in that manner and the dispute was solved.
(c) Gouri Nekha was very much concerned about her younger sister and she used to visit her younger sisters class room during class recesses to ensure that all is well. It appears that one of the Classmates of Meera Kalyan, a student by name Aalia Mujeeb, with whom Meera was very close earlier, bantered her for the punishment that was meted to her by her teacher. When her elder sister came visiting, Meera informed her about this incident. Gouri Nekha decided to intervene. On 20/10/2017, the date of incident, during lunch break, at about 12:50 p.m., Gouri Nekha went to the classroom of Meera Kalyan to meet her sister and she picked up a dispute with Aalia Mujeeb. This led to a quarrel between the students and later Gouri Nekha returned back to class X-A.
(d) After some time, Aalia Mujeeb along with some students of class VIII-D gathered together in front of Gouri Nekha’s classroom and there occurred a dispute between students of both the classes. This was brought to the notice of the 1st petitioner by some student and the 1st petitioner immediately rushed to class X-A. When she had reached the classroom Gouri Nekha was about to have her lunch. The 1st petitioner asked Gouri Nekha to follow her to meet the school Principal. This was done though the 1st petitioner had no charge over class X-A.
(e) While Gouri Nekha was being escorted to the office of the Principal, the CCTV recordings reveal that she was being scolded by the 1st petitioner and she appeared to be quite disturbed.
(f) On the way, Gouri Nekha managed to slip away and she went to the third floor of the primary Block building of the School and from there, she jumped down to the ground. She sustained serious injuries and was immediately taken to the Benziger Hospital, Kollam. The father of the child reached the hospital and for better medical treatment she was rushed to Anathapuri Hospital, hiruvananthapuram, where she was admitted in the Critical Intensive Care Unit. On 23/10/2017 at 2.15 hours, Gouri Nekha succumbed to her injuries. Based on the information furnished by the father of the deceased child, the Crime was registered under Section 305 r/w section 34 of the IPC and under Section 75 of Juvenile Justice Act, 2000.”
3. I have heard Sri. S. Rajeev, the learned Counsel appearing for the petitioner, Sri. Suman Chakravarthy, the learned Public Prosecutor and Sri B. Raman Pillai, who appeared for the father of the deceased child, who got himself impleaded as the 3rd respondent.
4. The learned Counsel appearing for the petitioners would take me through the various allegations and would submit that the petitioners being teachers, their only intention was to instill good habits and discipline in the students. All their acts were done in the best interest of the students. The 1st petitioner had rushed to class X-A when she was told that the students were ganging up outside the class room. She had asked Gouri Nekha to follow her to meet the School Principal as she bona fide thought that the dispute had arisen because Gouri Nekha had come to her class and picked up a fight with Aalia Mujeeb. It is further submitted that strict directions have been given to the teachers to see that students of different classes do not enter the class rooms of other students. According to the learned counsel, there is no direct act of instigation by the petitioners and no intentional act has been committed by the petitioners. 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. According to the learned counsel, the teachers, whose intention was only to instill proper discipline among the students may not be subjected to gross ignominy, humiliation and harassment. This is in essence the submission of the learned Counsel. The learned Counsel refers to the case reported in Sanju @ Sanjay Singh Sengar v. State of M.P. [MANU/SC/0392/2002 : 2002 SCC (Crl) 1141], Dr. Krishnadas P. (Dr.) (Adv) v. State of Kerala and Another MANU/KE/0549/2017 : (2017 (2) KLT 579), Gurcharan Singh v. State of Punjab MANU/SC/1551/2016 : (2016 (12) SCALE 414), Dr. Mrs. Seema Ajay Bhoosreddy V State of Maharashtra MANU/MH/1961/2011 and Vijayalakshmi V State and Another (MANU/TN/0709/2013) to buttress his submissions.
5. The learned Public Prosecutor would incisively oppose the submissions and referring to the case diary would narrate in detail, the facts, and would make an attempt to convince this Court that the student was being harassed and taunted by the teachers and on being left with no alternative, she decided to end her life. According to the learned Public Prosecutor, persistent mental harassment, threats and abject humiliation was meted out to the deceased child by the teachers in an inhumane manner which drove the child to take the extreme step. It was submitted that the 1st petitioner had no business to go to the class room of Gouri Nekha and ask her to follow her to the room of the Principal. She had not taken any effort to locate the child even after she had given the slip at some point of time. The 2nd petitioner as the class teacher of Gouri Nekha used to take private tuition and as the child did not join her tuition she was ill disposed towards the child. According to the learned counsel, the petitioners are teachers, who are expected to give care, attention and protection to the young students. Instead, the petitioners have subjected the minor child to mental torment. The commission of suicide by the child was a direct and immediate cause of the threat and instigation inflicted by the petitioners. The visuals in the CCTV footage are self speaking and the custodial interrogation of the petitioners are required for the purpose of a proper and fair investigation.
6. The learned Senior Counsel appearing for the 3rd respondent would support the submissions of the learned Public Prosecutor. The 3rd respondent has also filed a detailed affidavit wherein he asserts that both the petitioners used to blame the deceased child that she was the root cause of all the problems and used to mentally torture her. It is further submitted by the learned counsel that at 12:50 p.m., while deceased child was about to open the lunch box with her classmates, the petitioners entered the classroom and after ordering her to close the lunch box asked her to accompany them. If that be the case, the child was last seen with the teachers and they are duty bound to explain to the investigating officer as to what transpired thereafter. They have no explanation as to how the child gave them the slip and went to the 3rd floor of the primary school building which would show that they are suppressing material facts. It is further submitted that there are several doubtful circumstances and unless the petitioners are interrogated in custody, the truth will remain buried. The learned senior counsel also produced Annexure-A to bring home his point that there has been several complaints against other teachers as well of the said school.
7. I have considered the submissions advanced by both sides and have anxiously gone through the materials on record.
8. It is by now settled that at the time of consideration of bail application, the Courts are not expected to discuss the merits or demerits of the evidence collected against the accused. A detailed examination of the evidence or an elaborate documentation of the merits of the case has also to be avoided (See Naranjan Singh v. Prabhakar Rajaram Kharote [MANU/SC/0182/1980 : AIR 1980 SC 785] Puran v. Rambilas [MANU/SC/0326/2001 : 2001 (6) SCC 338]. I shall, therefore, desist from embarking upon a detailed discussion of the merits of the case lest it prejudices either of the sides.
9. For the limited purpose of ascertaining whether the petitioners have made out a case for pre-arrest bail, I have anxiously considered the prosecution allegations.
10. The 1st petitioner is the class teacher of standard VIII-D in which class Meera Kalyan is studying. Meera Kalyan was hauled up for talking and she was allegedly made to sit inside the class room in the midst of the boys. This is the root cause of the incident. The parents as well as Meera Kalyan didn’t like it. They took it up with the Principal and other authorities. It was apparently settled. However, the children took it up and a classmate of Meera Kalyan teased her. Gouri Nekha came to the class room to provide a protective shield for her sister and this led to a minor quarrel between Gouri and Aalia. This was taken up by other students and even according to the prosecution, the students of VIII standard ganged up and went to the X standard class room. Occurrences similar to these ordinarily occur in every school day in and day out and it is by the swift and prompt interference by the teachers that confrontations are averted and the students are asked to pursue their main objective of acquiring knowledge and thus becoming model citizens. Admittedly, in the Trinity Lyceum more than 4000 students are studying in classes upto the XII standard. It was on hearing the news of ganging up of the VIII standard students outside the X standard classroom that the 1st petitioner rushed to the class room. She took up the matter with Gouri and reprimanded her for inciting the trouble. May be, she should have been more considerate to Gouri Nekha. She asked Gouri Nekha to follow her to the Principal’s room. This was when she was about to take her lunch. The CCTV footage shows that Gouri Nekha was apprehensive while following the teacher and the 1st petitioner was reprimanding and scolding her. It would also show the child following her meekly until she gave the 1st petitioner a slip and went off to the Primary Block.
11. Section 305 of the Indian Penal Code deals with abetment of suicide of child or insane person. It says that if any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication commits suicide, any person who abets the commission of such suicide shall be punished with death imprisonment for life or imprisonment for a term not exceeding 10 years and shall also be liable to fine. Section 306 of the IPC deals with abetment of suicide of a person.
12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of the IPC. The Apex Court has held on numerous occasions that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. (See In State of W.B. v. Orilal Jaiswal [MANU/SC/0321/1994 : 1994 (1) SCC 73], Amalendu Pal @ Jhantu v. State of West Bengal MANU/SC/1808/2009 : [2010 KHC 6052 : 2010 (1) SCC 707]).
13. 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, being left with no option. This was held so in S.S. Chheena v. Vijay Kumar Mahajan [MANU/SC/0585/2010 : 2010 KHC 4560]. In S.S. Chheena, there was a dispute between one Saurav Mahajan, who was a final year student of Law Department and Harminder Singh, a fellow student of the same class, with regard to the theft of a mobile phone. This came to the notice of M.D. Singh, the then Head of the Law Department, who asked both the students to submit their versions of the incident in writing. The deceased and Harminder gave their versions and, thereafter, M.D. Singh forwarded their versions to the University authorities for taking necessary action. An inquiry was conducted on 13th October, 2003 by the Security Officer of the University Shri S.S. Chheena. During the course of inquiry, on 17th October, 2003, Saurav Mahajan committed suicide by jumping in front of the train. A suicide note was seized from the pocket of the deceased. On the complaint of father of the deceased, an offence under section 306 of I.P.C. was registered against Harminder Singh. During the course of trial, S.S. Chheena was also impleaded as accused. Being aggrieved by the framing of charge, S.S. Chheena approached the High Court. The High Court refused to interfere. Being aggrieved thereby, said S.S. Chheena approached the Supreme Court. The Apex Court observed thus:
“27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) : MANU/SC/1453/2009 : (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.
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.”
14. In State of Kerala and others v. S. Unnikrishnan Nair and others [MANU/SC/0881/2015 : 2015 (9) SCC 639], the Apex Court had occasion to consider a case of abetment of suicide by a superior police officer. In the said case, the Chief Investigating Officer had committed suicide pending investigation in a murder case. In the suicide note, it was alleged that two of his subordinates were responsible for his death. There were some allegations against one Advocate and the Chief Judicial Magistrate. The First Information Report came to be lodged against the subordinate officers. They filed a petition under Section 482 of the Code of Criminal Procedure. This Court quashed the First Information Report. Being aggrieved thereby, the State went in appeal before the Apex Court. While dismissing the appeal, it was observed thus:
“13. As we find from the narration of facts and the material 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 saying that the respondents compelled him 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 reasons, 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 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 he had put pressure on him. He has also made the allegation against the Advocate.”
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15. In M. Mohan (Supra), while dealing with the abatement, 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 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 are clear that in order to convict a person under S. 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 committed suicide.”
15. The Apex Court in Sanju @ Sanjay Sengar (supra) had considered the earlier precedents and had held as follows in paragraphs 9 to 12, which reads as follows:
“9. In Swamy Prahaladdas v. State of M.P. & Anr. [MANU/SC/1229/1995 : 1995 Supp. (3) SCC 438], the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased to go and die’. This Court was of the view that mere words uttered by the accused to the deceased ‘to go and die’ were not even prima facie enough to instigate the deceased to commit suicide.
10. In Mahendra Singh v. State of M.P. [MANU/SC/1987/1995 : 1995 Supp. (3) SCC 731], the appellant was charged for an offence under Section 306 I.P.C. basically based upon the dying declaration of the deceased, which reads as under:
“My mother-in-law and husband and sister-in-law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning.”
11. This Court, considering the definition of ‘abetment’ under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
12. In Ramesh Kumar V. State of Chhattisgarh [MANU/SC/0654/2001 : (2001) 9 SCC 618], this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:
“A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.”
16. In Seema Ajay Bhoosreddy v. State of Maharashtra [MANU/MH/1961/2011], which decision was relied on by the learned Counsel, the Bombay High Court had occasion to deal with an identical issue. Petitioner therein was a Professor in a Dental College and a student of BDS Course had committed suicide. It was alleged in F.I.R. that petitioner and other Doctors targeted the deceased and asked her to complete a difficult course within a short time and had threatened her leading to her suicide. A suicide note was also found during investigation in the said case. The learned Single Judge after evaluating the materials went on to hold that there was no material to establish that applicants had done any act which can be said to be with an intention to aid or instigate or abet the deceased to commit suicide.
17. Having regard to the facts of the case as presented before this Court and in view of the legal precedents the question is whether the petitioners have made out a case for grant of pre-arrest bail. In Siddharam Saltingappa Mhetre v. State of Maharashtra [MANU/SC/1021/2010 : AIR 2011 SC 312], the Apex Court had held that irrational and indiscriminate arrest are violative of human rights and laid down the factors that are to be taken into consideration while deciding anticipatory bail applications. The directions in the reports are instructive which are as under:
“122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S. 34 and S. 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.
126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar’s case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”
18. In the light of the above guidelines, I am of the considered view that no purpose would be served in compelling the petitioners herein to go behind bars. It does not appear to me that custodial interrogation of the petitioners are required in the instant case. I am of the view that if the petitioners, who are teachers, are arrested and subjected to custodial detention, it would only serve the object of injuring and humiliating them. The teachers are not persons with any criminal antecedents and there is no reason to suspect that they would commit similar offences if granted bail. These teachers have all served the school for several years and there is no reason to suspect that they would flee from justice. However, necessary directions an be issued ensured for a free fair and full investigation without causing any unjust harassment, humiliation and unjustified detention of the petitioners.
19. In the result, this Bail Application is allowed. The following directions are issued under Section 438 Cr.P.C.
“i) The petitioners shall appear before the learned Magistrate at 11 a.m on 17.11.2017. They shall be enlarged on regular bail on their executing bond for Rs. 50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate;
ii) The petitioners shall make themselves available for interrogation before the Investigating Officer between 10 a.m and 4 p.m on 18.11.2017, 19.11.2017 and 20.11.2017 and thereafter between 10 a.m and 12 noon on all Saturdays for a period of one month. Subsequently, the petitioners shall make themselves available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so;
iii) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioners and deal with them in accordance with law as if those directions were not issued at all;
iv) If the petitioners are arrested prior to their surrender on 17.11.2017 as directed in clause (1) above, they shall be released from custody on their executing a bond for Rs. 50,000/- (Rupees Fifty thousand only) without any sureties undertaking to appear before the learned Magistrate on 17.11.2017.
v) The petitioners shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution.
vi) The petitioners shall not commit any offence while on bail.”
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.
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