Bail in Suicide case under Section 438 Cr.P.C

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938
Bail Appl..No. 1071 of 2017 ()

CRIME NO. 19/2017 OF PAZHAYANNOOR POLICE STATION,THRISSUR DISTRICT

PETITIONER/ACCUSED NO.1 :

ADV. DR.P. KRISHNADAS,
AGED 43 YEARS, S/O.P.K.DAS (LATE),
CHAIRMAN & MANAGING TRUSTEE,
NEHRU COLLEGE OF EDUCATIONAL & CHARITABLE TRUST,
451-D, PALAKKAD MAIN ROAD, KUNIYAMUTHUR, COIMBATORE.

BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE

RESPONDENT(S)/STATE/COMPLAINANT :

1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031
(CRIME NO.19/2017 OF PAZHAYANNOOR POLICE STATION,THRISSUR DISTRICT.)

2. STATION HOUSE OFFICER,
VALAPPAD POLICE STATION, THRISSUR DISTRICT-680 567
(CRIME NO.19/2017 OF PAZHAYANNOOR POLICE STATION,THRISSUR DISTRICT)
R1 & R2 BY SPL.PUBLIC PROSECUTOR SRI.C.P.UDAYABHANU

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

K.ABRAHAM MATHEW, J.

B.A.No.1071 of 2017

Dated this the 2nd day of March, 2017
O R D E R

Petition filed under Section 438 Cr.P.C.

2. The petitioner is the Acting Chairman and Managing Trustee of the Nehru College of Educational and Charitable Trust which has in its ownership and administration 19 education institutions situated in Kerala and Tamil Nadu, one of them being Nehru College of Engineering and Research Centre situated at Pampadi in Thrissur District. One Jishnu Pranoy was a first year student in that college. On 06.01.2017 he appeared for the semester examination conducted from 2 pm and 5 pm. At about 4.30 pm he along with another student by name Jishnu Raj was caught for alleged malpractice. At about 6.30 pm Jishnu Pranoy committed suicide in his room in the men’s hostel attached to the college. The local police registered Crime No.19/2017 under Section 174 Cr.P.C. The First Information Statement given by one of the students revealed that there was harassment and mental torture by the Vice Principal, the Invigilator and other officers of the college in connection with the allegation of malpractice, which was the reason for Jishnu Pranoy’s committing suicide. Later, the government constituted a Special Investigation Team to investigate into the incident. On 12.02.2017, the investigating officer sent a report to the learned Magistrate concerned stating that there is evidence to show commission of the offences under Sections 120-B, 201, 306, 323, 384, 465, 468 and 471 IPC. The first semester examinations were originally scheduled to be held in the first week of December 2016. It was postponed to January, 2017. The students left the hostel and their place of residence for their homes or elsewhere. Later, they were informed that the examinations were advanced to December, 2016. Jishnu Pranoy protested against it and sent complaints to the University and other authorities and he urged other students to do so. The main ground was that there was violation of the mandatory rule that minimum fourteen days notice should be given for the examination. This was not liked by the college authorities and according to the prosecution they targetted Jishnu Pranoy. On 06.01.2017, the examination started at 2 pm and by about 4.30 pm the 4th accused, the Invigilator, asked Jishnu Pranoy and Jishnu Raj to produce their answer sheets. The latter was sitting just in front of the former. The Invigilator told them that Jishnu Raj allowed Jishnu Pranoy to copy his answers. Both of them denied it. They were taken to the principal’s room, where they met the Vice Principal who is the 3rd accused in this case. The Vice Principal and the Invigilator threatened Jishnu Raj as well as Jishnu Pranoy that unless they struck off their answers they would be barred for three semesters. Jishnu Raj refused to do so. Jishnu Pranoy struck off his answers. The Vice Principal and the Invigilator took from him signed blank papers. According to the prosecution those accused forged an apology letter in the signed papers obtained from Jishnu Pranoy. This incident was the immediate cause of Jishnu Pranoy’s committing suicide.

3. The allegation against the petitioner is seen in paragraphs 6 to 8 in the statement filed by the investigating officer, Assistant Superintendent of Police. It is quoted below.

“6. The petitioner (A1) is the principal conspirator who
wants to enforce so called discipline in the college by
intimidating and mentally or physically harassing the
students. For the said purpose he conspired with the other
accused, from the very inception of the functioning of the
college and the said conspiracy is still in existence. In
accomplishment of the said conspiracy the accused used to
extort the students to sign blank papers with a view to
make it their false confessions so as to convert it into a
document for relinquishing the rights of the students who
complained against the illegal acts and deeds of the
college authorities. They hold the students to ransom, and
get these signatures by fear of injury as well as
withholding their school certificates and threatening them
of dire consequences in the exams and spoiling their
academic future.

7. By doing these criminal acts, the petitioner A1,
along with other accused suppress the genuine grievances
and reasonable rights of the students. There is an
atmosphere of terror in the college campus amongst the
students due to this kind of venomous, vengeful and cruel
acts of the petitioner A1 and other accused. The broad
conspiracy is against those students who blow the whistle
against the misdoings of the management or raise issues
of student’s welfare. Any leadership initiatives or attempt
for student union activities is thwarted by the petitioner A1
and other accused by sketching and targeting such
students, followed by methods such as reducing internal
marks, attendance shortage, and fake allegations of
ragging, so as to punish them, which causes excruciating
pain to the targeted students due to loss of an academic
year as well as financial loss. The targeted student is
harassed mentally and physically, in the board room i.e.,
the room of accused A2. The room is called “Idimuri” by
the student fraternity. The Students are tortured here to
the extent of making him/her defenseless, helpless and
dispirited.

“All these incidents were done with active knowledge and
connivance of the petitioner. The accused are having definite
knowledge that the above acts committed by them is sufficient
to drive any person to do away with his life ……..” “There are
circumstantial evidences to prove that he (Jishnu Pranoy) was
taken to the room of the accused A-2 and physically assaulted
and mentally tortured with active knowledge of A-1.”

4. According to the prosecution the accused including the petitioner abetted the suicide of Jishnu Pranoy, which is the main allegation in this case. The learned counsel submits that the facts of the case do not attract Section 107 IPC or Section 306 IPC.

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5. Heard the learned counsel for the petitioner and the learned senior counsel Sri.C.P.Udayabhabu, who has been appointed by the government as Special Prosecutor in this case.

6. The initial and essential question that arises for the consideration in this case is whether the prosecution has been able to collect any evidence to show that the petitioner was involved in the incident which led to the suicide of Jishnu Pranoy.

7. The requirement of Section 107 IPC and Section 306 IPC have been discussed in various decisions of High Courts as well as the Supreme Court. Under Section 107 IPC, a person can be said to have abetted a thing when he instigates or intentionally aids the doing of that thing or enters into a conspiracy for the doing of that thing. So far as this case is concerned, the only question is whether the petitioner instigated commission of suicide by Jishnu Pranoy.

8. The word ‘instigation’ is not defined in Indian Penal Code. Its dictionary meaning has been adopted by the Supreme Court in its various decision. To instigate means to provoke, incite, urge or bring about by pursuance to do a thing.

9. In Mahendra Singh v. State of Madhya Pradesh [1995 Supp (3) Supreme Court Cases 731], the apex court has held that mere harassment is not sufficient to attract Section 306 IPC. In Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618] which has been relied on by the Supreme Court in almost all in its subsequent decisions it was held that the instigation may be inferred from a course of conduct. In the said decision it is also observed that instigation by the accused should be the proximate cause for the commission of the suicide by the deceased. Mere cruelty is not sufficient. There should be evidence of direct or indirect instigation by the accused as observed by the Supreme Court in Sohan Raj Sharma v. State of Haryana [AIR 2008 Supreme Court 2108]. In M. Mohanan v. State [(2011) 3 Supreme Court Cases 626] the apex court held that there should be evidence of positive act on the part of the petitioner. Relying on the decision of the Supreme Court in Ramesh Kumar’s case (supra) in Chitresh Kumar Chopra v. State [(2009) 16 SCC 605] the court held that the instigation must necessarily and specifically be suggestive of the consequence. A reasonable certainty to incite the consequence must be capable of being spelt out. In S.S.Chhesa v. VijayKumar Mahajan [(2010) 12 SCC 190] the apex court held that abetment involves a mental process of instigating a person in doing of a thing and a positive act on the part of the accused to instigate in doing the thing is necessary. It was has been held that to attract Section 306 IPC, there has to be a clear mens rea to commit the offence. This has been reiterated in Madan Mohan Singh v. State of Gujarat [(2010) 8 SCC 6028] and in Praveen Pradhan v. State of Uttaranchal [(2012) 9 SCC 734].

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10. Testing on the touchstone of the Supreme Court decisions referred to above, I shall consider the materials collected by the investigating officer in support of the prosecution case that the petitioner also has committed the offence under Section 306 IPC.

11. The prosecution mainly relies on the statement of Dr.A.S.Varadarajan, the Principal of the College, Mahesh, uncle of the deceased, and two other students. The statement of the Principal which was recorded under Section 164 Cr.P.C. by a learned Magistrate indicates that the allegation that Jishnu Pranoy was guilty of malpractice is false. He told the Magistrate that he could not agree with the Vice Principal and the Invigilator that the deceased copied the answers of another student, but the Vice Principal and the Invigilator did not agree with him. They threatened the deceased that he would be debarred for three semesters. The statement given by the Principal shows that the Vice Principal and the Invigilator subjected the deceased to mental cruelty. The statement of Mahesh, uncle of the deceased, was recorded under Section 161 Cr.P.C. His statement is based on hearsay alone. There is not even a whisper that the petitioner had a role in torturing the deceased. There is no mention that the petitioner was directly or indirectly involved in the incident which took place in the room of the Principal where the Vice Principal and the Invigilator allegedly subjected the deceased to cruelty. His statement does not disclose presence of the petitioner in the college or its premises. The police recorded the statement of one Shoukathali, who is a student of another college belonging to the Trust, of which the petitioner is the Managing Trustee. He told the police that he was assaulted by the petitioner. But that incident cannot be taken notice of in this case. It is a totally independent one. The statement of two other students namely Sanal and Ajmal claim to have some injuries on the deceased when they met him before he committed suicide. But the Postmortem certificate does not disclose any external injury except an abrasion on the nose and a lacerated injury on the inner side of both lips.

12. Now the question is whether the general allegation that the college authorities including the petitioner used to subject the students to cruelty if they resisted any attempt of the authorities to enforce discipline has any significance. In the statement filed by the investigating officer it is stated that the college authorities used to maintain a ‘torture room’ in the college where the students whom they wanted to be disciplined were brought and tortured. It is in this room Shoukathali was allegedly tortured by the petitioner. The prosecution has also a case that there were blood stains in that room and it was cleaned before the investigation started. But these general allegations are not sufficient to attract Section 107 IPC or Section 306 IPC so far as the petitioner is concerned. As held by the Supreme Court there should be material to show that the petitioner suggested to the deceased to commit suicide. The instigation allegedly made by the accused and the commission of suicide by the deceased must be proximate. I have perused the case diary and the statements relied on by the learned Special Public Prosecutor. The prosecution has not been able to collect any evidence to show that the petitioner by his words or conduct suggested to the deceased to commit suicide or that he did something which was proximate to the commission of suicide by the deceased.

13. The learned Special Public Prosecutor also has brought to my notice that the allegation that the deceased copied the answers of another student is false. It relies on the enquiry report submitted by the Kerala Technical University. This is not much relevant because I have already mentioned that the Principal had told the Vice Principal that the deceased could not be held guilty of malpractice. It is also pertinent to note that the college authorities did not inform the University that the deceased was guilty of malpractice. So, it can be taken for granted that as of now there is no evidence to show that the deceased was guilty of malpractice.

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14. Another submission of the learned Special Public Prosecutor is that the college authorities are guilty of fabricating evidence. The letter of apology allegedly executed by the deceased is a forged one, according to the prosecution. The document has been sent for experts’ opinion. Even if it is assumed that the contents of the letter was written up on a signed blank paper obtained from the deceased, it cannot be held that it is an evidence against the petitioner.

15. Yet another circumstance relied on by the prosecution is that the college authorities destroyed evidence by removing the hard disk of the computer used to record the happenings in the college. It appears that the materials relied on by the prosecution in support of this argument is worthy of notice. But as of now there is nothing to show that the petitioner was involved in it. Even if it is assumed that he is also involved in it, it will attract only Section 201 IPC. That offence is a bailable one.

16. To sum up, there is no material available in the case diary to show that the petitioner had instigated the deceased to commit suicide. I have no doubt that the case of the Vice Principal, the Invigilator and other officers stands on a different footing. I have already mentioned that there is evidence to show that they had subjected the deceased to cruelty. But there is no material indicating that the petitioner also was involved in it. Even assuming that the college authorities wanted to suppress any attempt on the part of the students to form a union in the college as submitted by the learned Special Public Prosecutor and the authorities wanted to nip in the bud resistance on the part of the students against the illegal or irregular attempts of the college authorities to discipline the students is true, that cannot be a material that can be taken into account in this case. A general allegation is not sufficient to attract Section 107 IPC or 306 IPC. As held by the Honourable Supreme Court there must be direct evidence that the petitioner was actively involved in instigating the deceased. There must be also evidence to show that he wanted the consequence to follow, it being commission of suicide by the deceased. The prosecution has no such case. Now the question is whether the course of conduct of the college authorities was such that a person like the deceased would have committed suicide. The prosecution case is that it is the false allegation that the deceased was guilty of malpractice at the examination was the cause of his committing suicide. It has no case that it was the general atmosphere in the college that was the proximate cause for his committing suicide.

17. I do not find any material in the case diary to deny anticipatory bail to the petitioner.

In the result, this bail application is allowed.

1) The petitioner shall be released on bail after interrogation on his executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum if he is arrested by the investigating officer in connection with this case.
2) He shall not interfere with the day to day activities of Nehru College of Engineering Research Centre, Pampady, nor shall he enter its premises without the previous permission of the trial court concerned.
3) He shall appear before the Investigating Officer for interrogation if he is so required by the latter in writing.
4) He shall not cause any electronic goods or other items involved in the case to be removed from the college premises either by himself or through others.
5) He shall not leave the State of Kerala without the previous permission of the trial court.
6) He shall surrender his passport before the lower court within five days of this order or if he does not have one he shall file an affidavit to that effect within that period.
7) He shall not interfere with the investigation, nor shall he intimidate or influence the witnesses.

In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law.

The statement of Dr.A.S.Varadarajan, Principal of the College, recorded under Section 164 Cr.P.C. shall be sent back to the learned Magistrate in a sealed cover.

Sd/-
K.ABRAHAM MATHEW
JUDGE
sd
// True Copy // P.A.to Judge

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