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S.A.Margaret Angel vs State Rep By The Inspector Of … on 5 October, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 05.10.2018

Date of Reserving the Order
Date of Pronouncing the Order
01.10.2018
05.10.2018
CORAM
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD).No.15407 of 2016
and
Crl.M.P.(MD) Nos.7288 and 7289 of 2016

1.S.A.Margaret Angel
2.Baby Mary …Petitioners/Accused 1 and 2
Vs.

1.State rep by the Inspector of Police,
C-5 Karimedu (LO) Police Station,
Madurai City,
(Crime No.352 of 2014) …Respondent/Complaintant

2.Vasantha Mary …2nd Respondent/ De facto
Complainant

PRAYER: Criminal Original Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records in P.R.C.No.48 of 2016 on the file of
the learned Judicial Magistrate No.V, Madurai and quash the same as ilegal,
violation of Principles of law.

!For Petitioners : Mr.K.Samidurai

^For R-1 : Mr.M.Chandra Sekaran
Additional Public Prosecutor
For R-2 : No appearance

:Order

This petition has been filed seeking to quash the proceedings in
P.R.C.No.48 of 2016, pending on the file of the learned Judicial Magistrate
No.V, Madurai.

2.The petitioners are arrayed as A-1 and A-2 in the final report.

3.The case of the prosecution is that the first petitioner was married
to one Gerald Raja in the year 2008 and out of the said wedlock, a female
child was also born to them. It is the further case of the prosecution that
even before the first petitioner married the said Gerald Raja, she had an
affair with one Rajesh, who was arrayed as A-3 in the final report. This was
questioned by the deceased husband of the first petitioner and on 19.03.2014,
the first petitioner went missing and the deceased lodged a complaint before
the respondent police. On 23.03.2014, the second petitioner is said to have
contacted the deceased over phone and abused him stating that he should not
have married the first petitioner and he is incapable of supporting his wife
/ first petitioner and the first petitioner will live only with the said
Rajesh and the deceased should not go in search of the first petitioner and
rather he can go and die. The first petitioner had also called the deceased
and repeated the same thing that was said by her mother. The deceased not
being able to tolerate the insult, is said to have committed suicide on
24.03.2014 at about 10.15 a.m., In the suicide note written by the deceased,
he had blamed the petitioners and the said Rajesh for his death.

4.The complaint was given by the second respondent, who is the mother
of the deceased and the first respondent had registered a First Information
Report under Section 174 of Cr.P.C., Thereafter, the case was investigated
and the First Information Report was altered for an offence under Section 306
IPC against all the three persons. A-3 filed a quash petition before this
Court in Crl.O.P(MD) No.1175 of 2014 seeking to quash the First Information
Report and this Court by an order dated 23.07.2015, quashed the First
Information Report insofar as the A-3 is concerned.

5.Subsequently, the respondent police investigated the case and filed a
final report against the petitioners for an offence under Section
306 IPC and the same has been taken cognizance by the Court below.

6.It will be relevant to extract the allegation that has been made
against the petitioners in the final report, which is as follows:-

khh;fpnul; VQ;ry; fle;j 19.03.2014k; njjp gfy; 11.00 kzp
KjypUe;J fhztpy;iy vd;W b$uhy;L uh$h fhpnkL fhty; epiyaj;jpy; g[fhh; bfhLj;J
njo te;j epiyapy; 23.03.2014k; njjp ,ut[ khh;fpnul; VQ;rypd; mk;kht[k;
,t;tHf;fpd; 2tJ vjphpa[khd nggpnkhp nghdpy; b$uhy;Luh$htplk; bghz;l;oia itj;J
thH tf;F ,y;iy. cdf;bfy;yhk; vJf;F bghz;lhl;o mts; ,dpnky; ,uhn$; Tl jhd;
,Ug;ghs;. Mtis njlhnj Koe;jhy; eP brj;J ngh vd;W ngrpa[s;shh;. 24.03.2014k;
njjp fhiy 08.45 kzpf;F khh;fpnul; VQ;ry; nghdpy; b$uhy;L
uh$htplk; btspehl;L ntiy ghh;f;Fk; ,uhn$; cld; jhd; thH;ntd; vd;id
fhztpy;iy vd;W Vd; nghyp]py; g[fhh; bfhLj;jha; vdf;F cd;Dld; thH
tpUg;gkpy;iy. ,d;W khiy ehd; tUtjw;Fs; eP ,Uf;f TlhJ brj;J ngh vd;W
ngrpa[s;shh;.

thjpapd; kfd; b$uhy;Luh$h 24.03.2014k; njjp fhiy 10.15 kzpf;F nkw;go
nkyg;bghd;dfuk; 2tJ bjUtpy; cs;s thjpapd; tPl;od; khoapy; vd; rht[f;F vd;
kidtpa[k; khkpahUk; uhn$; Kf;fpa fhuzk; fhty;Jiw eltof;if vLf;f ntz;Lk;
vd;W jw;bfhiy fojk; vGjp itj;J J}f;F khl;o ,we;Js;shh;. khh;$pdpy; fz;l
vjphpfs; jw;bfhiyf;F J}z;oa Fw;w bray; g[hpe;Js;shh;fs;.

7.It will also be relevant to extract the statement given by the
de facto complainant before the police which is as follows:-

vd; kfd; b$uhuy;L uh$h nkw;go jdJ kidtp khh;fpnul; VQ;ry; jhd; capUld;
,Uf;Fk;nghnj mtuJ Kd;dhz; fhjyuhd ,uhn$; cld; gHfp vdf;F cd;Dld; thH
tpUg;gkpy;iy. ,d;W khiy ehd; tUtjw;Fs; eP capnuhL ,Uf;f TlhJ brj;J ngh vd
brhd;djhYk; mtuJ khkpahuhd nggpnkhp nghdpy; b$uhy;L uh$htplk; bghz;lhl;oia
itj;J thH tf;F ,y;iy. cdf;bfy;yhk; vJf;F bghz;lhl;o mts; ,dpnky; ,uhn$; Tl
jhd; ,Ug;ghs;. mtis njlhnj eP brj;J ngh vd;w ngrpajhYk; ,uhn$; jpUkzkhd jd;
kidtpa[ld; bjhlh;g[ itj;Js;shnu vd;w kdntjidahYk; nkw;go egh;fspd; Jz;Ljyhy;
J}f;F khl;o jw;bfhiy bra;J ,we;Js;shh;. nkYk; ,we;e epiyapy;
bjh[[q;fpbfhz;oUe;j b$uhy;L uh$h gpnujk; mUfpy; ?vd; rht[f;F
vd; kidtpa[k; khkpahUk; uhn$; Kf;fpa fhuzk; fhty;Jiw eltof;if vLf;f
ntz;Lk;?vd b$uhy;L uh$hthy; vGjg;gl;l fojk; xd;W fple;jJ ,J rk;ge;jkhf
eltof;if vLf;f ,sq;nfhuh$; vd;gth; ehd; brhy;y brhy;y vGjpa g[fhhpid
nghyP]py; bfhLj;njd;. mJ rk;ke;jkhf tHf;F gjpt[ bra;J ,d;W ,we;j vd;kfdpd;
gpnuj tprhuizapd; nghJ jhq;fs; vd;iw tprhhpj;jPh;fs;

8.The point for consideration before this Court is whether the above
allegations made in the final report and the statement given by the de facto
complainant, will constitute an offence under Section 306 IPC.

9.It will be relevant to consider two judgments rendered by the Hon’ble
Supreme Court, on the facts which are almost similar to the present case.

10.The first judgment of the Hon’ble Supreme Court is in Pinakin
Mahipatray Rawal Vs. State of Gujarat reported in (2013) 10 SCC 48. The
relevant portions are extracted here under:-

9.The prosecution stand is that the abovementioned letters would
disclose the feelings and sufferings of an unfortunate wife having come to
know of the love affair between her husband A-1 and his colleague A-2, which
ultimately led her to commit the act of suicide.

13.Alienation of affection by a stranger, if proved, is an
intentional tort i.e. interference in the marital relationship with intent to
alienate one spouse from the other. Alienation of affection is known as
?Heart Balm? action. Anglo-Saxon common law on alienation of affection has
not much roots in this country, the law is still in its nascent stage. Anglo-
Saxon based action against third parties involving tortuous interference with
the marital relationship was mainly compensatory in nature which was earlier
available to the husband, but, of late, a wife could also lay such a claim
complaining of alienation of affection. The object is to preserve marital
harmony by deterring wrongful interference, thereby to save the institution
of marriage. Both the spouses have a valuable interest in the married
relationship, including its intimacy, companionship, support, duties,
affection, welfare of children etc.

14. We notice, in this country, if the marital relationship is
strained and if the wife lives separately due to valid reasons, the wife can
lay a claim only for maintenance against the husband and if a third party is
instrumental for disrupting her marriage, by alienating her spouse?s
affection, companionship, including marital obligations, seldom, we find the
disgusted spouse proceeds against the intruder into her matrimonial home.
Possibly, in a given case, she could question the extent, that such injuries
can be adequately compensated, by a monetary award. Such an action, of
course, may not protect a marriage, but it compensates those who have been
harmed.

15. We are, however, of the view that for a successful
prosecution of such an action for alienation of affection, the loss of
marital relationship, companionship, assistance, loss of consortium, etc. as
such may not be sufficient, but there must be clear evidence to show active
participation, initiation or encouragement on the part of a third party that
he/she must have played a substantial part in inducing or causing one
spouse?s loss of other spouse?s affection. Mere acts, association, liking as
such do not become tortuous. Few countries and several States in the United
States of America have passed legislation against bringing in an action for
alienation of affection, due to various reasons, including the difficulties
experienced in assessing the monetary damages and few States have also
abolished ?criminal conversation? action as well.

19.Marital relationship means the legally protected marital
interest of one spouse to another which include marital obligation to another
like companionship, living under the same roof, sexual relation and the
exclusive enjoyment of them, to have children, their up-bringing, services in
the home, support, affection, love, liking and so on. Extra-marital
relationship as such is not defined in the Penal Code. Though, according to
the prosecution in this case, it was that relationship which ultimately led
to mental harassment and cruelty within the explanation to Section 498- A and
that A-1 had abetted the wife to commit suicide. We have to examine whether
the relationship between A-1 and A-2 amounted to mental harassment and
cruelty.

21.This Court in Girdhar Shankar Tawade Vs. State of Maharashtra,
examined the scope of the explanation and held as follows : (SCC p.180 para

3)
?3. The basic purport of the statutory provision is to avoid ?cruelty? which
stands defined by attributing a specific statutory meaning attached thereto
as noticed hereinbefore. Two specific instances have been taken note of in
order to ascribe a meaning to the word ?cruelty? as is expressed by the
legislatures: whereas Explanation (a) involves three specific situations viz.

(i) to drive the woman to commit suicide or (ii) to cause grave injury or

(iii) danger to life, limb or health, both mental and physical, and thus
involving a physical torture or atrocity, in Explanation (b) there is absence
of physical injury but the legislature thought it fit to include only
coercive harassment which obviously as the legislative intent expressed is
equally heinous to match the physical injury: whereas one is patent, the
other one is latent but equally serious in terms of the provisions of the
statute since the same would also embrace the attributes of ?cruelty? in
terms of Section 498A.?

22. In Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, this
Court held that the concept of cruelty under Section 498A IPC and its effect
under Section 306 IPC varies from individual to individual also depending
upon the social and economic status to which such person belongs. This Court
held that cruelty for the purpose of offence and the said Section need not be
physical. Even mental torture or abnormal behaviour may amount to cruelty or
harassment in a given case.

23. We are of the view that the mere fact that the husband has developed
some intimacy with another, during the subsistence of marriage and failed to
discharge his marital obligations, as such would not amount to ?cruelty?, but
it must be of such a nature as is likely to drive the spouse to commit
suicide to fall within the explanation to Section 498-A IPC. Harassment, of
course, need not be in the form of physical assault and even mental
harassment also would come within the purview of Section 498-A IPC . Mental
cruelty, of course, varies from person to person, depending upon the
intensity and the degree of endurance, some may meet with courage and some
others suffer in silence, to some it may be unbearable and a weak person may
think of ending one?s life. We, on facts, found that the alleged extra
marital relationship was not of such a nature as to drive the wife to commit
suicide or that A-1 had ever intended or acted in such a manner which under
normal circumstances, would drive the wife to commit suicide.

27. Section 306 refers to abetment of suicide. It says that if any
person commits suicide, whoever abets the commission of such suicide, shall
be punished with imprisonment for a term which may extend to 10 years and
shall also be liable to fine. The action for committing suicide is also on
account of mental disturbance caused by mental and physical cruelty. To
constitute an offence under Section 306 the prosecution has to establish that
a person has committed suicide and the suicide was abetted by the accused.
Prosecution has to establish beyond reasonable doubt that the deceased
committed suicide and the accused abetted the commission of suicide. But for
the alleged extra marital relationship, which if proved, could be illegal and
immoral, nothing has been brought out by the prosecution to show that the
accused had provoked, incited or induced the wife to commit suicide.

11.The second judgment of the Hon’ble Supreme court is in
K.V.Prakash Babu Vs. State of Karnataka reported in (2016) 4 MLJ (Crl) 750
(SC) LNIND 2016 SC 565. The relevant portions are extracted here under:-

15. Slightly recently in Ghusabhai Raisangbhai Chorasiya V.State of
Gujarat AIR 2015 SC 2670: (2015) 11 SCC 753: LNINDU 2015 Sc31, the Court
perusing the material on record opined that even if the illicit relationship
is proven, unless some other acceptable evidence is brought on record to
establish such high degree of mental cruelty the explanation (a) to section
498-A of the IPC which includes cruelty to drive the woman to commit suicide,
would not be attracted. The relevant passage from the said authority is
reproduced below:-

?True it is, there is some evidence about the illicit relationship and even
if the same is proven, we are of the considered opinion that cruelty, as
envisaged under the first limb of Section 498A IPC would not get attracted.
It would be difficult to hold that the mental cruelty was of such a degree
that it would drive the wife to commit suicide. Mere extra-marital
relationship, even if proved, would be illegal and immoral, as has been said
in Pinakin Mahipatray Rawal (supra), but it would take a different character
if the prosecution brings some evidence on record to show that the accused
had conducted in such a manner to drive the wife to commit suicide. In the
instant case, the accused may have been involved in an illicit relationship
with the appellant no.4, but in the absence of some other acceptable evidence
on record that can establish such high degree of mental cruelty, the
Explanation to Section 498-A which includes cruelty to drive a woman to
commit suicide, would not be attracted.?

16. The concept of mental cruelty depends upon the milieu and the
strata from which the persons come from and definitely has an individualistic
perception regard being had to one?s endurance and sensitivity. It is
difficult to generalize but certainly it can be appreciated in a set of
established facts. Extra-marital relationship, per se, or as such would not
come within the ambit of Section 498-A IPC. It would be an illegal or immoral
act, but other ingredients are to be brought home so that it would constitute
a criminal offence. There is no denial of the fact that the cruelty need not
be physical but a mental torture or abnormal behaviour that amounts to
cruelty or harassment in a given case. It will depend upon the facts of the
said case. To explicate, solely because the husband is involved in an extra-
marital relationship and there is some suspicion in the mind of wife, that
cannot be regarded as mental cruelty which would attract mental cruelty for
satisfying the ingredients of Section 306 IPC.

12.It is clear from the above judgments rendered by the Hon’ble Supreme
Court that the mere extramarital relationship, by itself will not amount to a
cruelty unless it is of such a nature as is likely to drive the spouse to
commit the suicide. In this Case, the deceased husband became hyper
sensitive after talking with the petitioners over phone, wherein they had
stated that the first petitioner will continue with the illicit relationship
and if the husband does not like it, he can go and die. This one phone call
had driven the husband to commit the suicide. Sensitivity to ordinary
petulance, discord or differences in domestic life should not normally drive
a person to commit suicide, unless the person is unduly hyper sensitive. In
such a case the accused persons cannot be convicted for an offence under
Section 306 IPC. It must be established that there was a strong mens rea to
commit the offence under Section 306 IPC and there must be a positive act on
the part of the accused to instigate and aid in the commission of suicide.
The words uttered in a quarrel or in a spur of the moment cannot be taken
to be uttered with mens rea in order to constitute instigation to commit
suicide.

13.It is also relevant to take note of the judgment of this Court in
Ananda Sekaran Vs. State by Inspector of Police, K1 Sembiam Police Station,
Chennai reported in 2007-1-L.W.(Crl)163. The relevant portions are extracted
hereunder:-

A sensitive wife, aggrieved by the ordinary words, said to have been
uttered by the husband ?,Ue;jhy; ,U my;yJ brj;JtpL? meaning ‘whether you live
or die’, had committed suicide by pouring kerosene, setting ablaze, as spoken
by P.W.2 creates a doubt genuinely whether that would come within the meaning
of instigation and in my considered opinion ?no? Therefore even assuming that
P.W.2’s evidence is true, it fails to prove the ingredients required under
Section 107 IPC, leading to 306 IPC or compelling the Court to infer the
abetment as contemplated under law. P.W.2 is (was) under the custody of the
maternal grandfather or grand mother. Therefore, she is bound to response,
to the command of the mother of the deceased. In this view, the evidence
given by a child witness without corroboration may not be safe to be acted
upon to prove the abetment. Assuming that the oral evidence of P.W.2 is true
as said above, it fails in standard to attract the instigation which is
primarily needed for abetment.

18.Mr.T.Sundanthiram, the learned Senior Counsel arguing that
in the absence of mens rea, in the causal way, if he husband scolded the wife
?to go and die? as in this case, it will not amount to abetment and in aid he
relied on decisions of the Apex Court in Ramesh Kumar Vs. State of
Chhattishgarh(2002 SCC(Cri) 1088) and Sanju v. State of MP (2002 SCC (Crl)
1141). In the case involved in the first decision, the accused/appellant
therein was convicted for the offences under Sections 498-A and 306 IPC,
which was challenged. As seen from paragraph-22 of the judgment, in that
case also, the accused tried to put off fire and also took the wife to the
hospital for treatment, as the facts available in the case on hand.
Considering that aspect and the other kind of inconsistency available, the
Apex Court has held that there would not have been instigation and the
relevant sentences read:

?The conduct of the accused trying to put off fire and taking his wife
to the hospital also improbbilise the theory of having abetted suicide?

which dictum deserves to be applied in all force to the case on hand.

19.In the second case, referring the above decision, when the
case was dealt with under Section 306 r/w 107 Ipc, the Apex Court held that
the words uttered in a quarrel or on the spur of the moment such as ‘to go
and die’ cannot be taken to be uttered with mens rea and therefore, the
person so said cannot be convicted under Section 306 IPC. If the accused had
the motive or intention that his wife should die committing suicide on her
own, then there must be some instance bringing to surface the mens rea, which
is essential as held by the Apex Court. No instance brought to the notice of
the Court how the accused entertained mens rea or how and why he should think
that his wife should commit suicide for which he should have abetted. If
really he had the intention that his wife should die and in that process with
mens rea if he had scolded her, ordinarily he would not have gone to the
rescue of the wife by putting off the fire, then taking to the hospital as
observed by the Apex court and in the normal course, he would have left the
house itself, allowing the wife to die, which is not the case admittedly
here. Therefore, the mens rea is also absent and this being the position,
the conviction appears to be incorrect.

20.In Swamy Prahaladdas V. State of MP (1995 SCC (Crl.) 943)
the Apex Court has held when the offence under Section 306 Ipc was
challenged, for quashing, when the suicide is not the direct result of the
words uttered by the accused, no person could be called to face the trial
under Section 306 IPC. In the case involved in the above decision, it seems
the accused therein scolded the deceased or remarked ‘to go and die’.
Thereafter the deceased went home in a dejected mood committed suicide, which
was sought to be brought under Section 306 IPC. Considering the above facts
and circumstances of the case, the Apex Court held mere uttering the words
‘go and die’ is not sufficient to bring the offence under Section 306 IPC.

21. In State of Gujarat v. Sunilkumar Kanaiyalal Jain (1997
Crl.L.J.2014) a Division Bench of the Gujarat High Court considering the
scope of Section 306 IPC elaborately dealt with abetment, realising the
responsibility of the Court also has observed, ?better die today than
tomorrow? if had been uttered cannot be said to be the abetment in the eye of
law since the words might have been uttered due to outburst of one’s own
fatuity or anger or consternation without any intention or knowledge or might
be the rude or insulting, not with desire to instigate the person to commit
suicide, which principle also could be extended to the above case on hand.
By applying the law settled by the Supreme Court to the facts of the case on
hand, as well as analysing the evidence available on record and taking into
consideration the over all circumstances of the case also after deep
consideration, I am of the considered opinion, no offence has been made out
under Section 306 IPC.

14.This Court has also considered the similar issue in Sekar Vs. State
by Inspector of Police, Tiruchengode Police Station, Namakkal District
reported in (2011) 3 MLJ (Crl) 829. The relevant portions are extracted
hereunder:-

5. In support of his contention, the learned counsel for the appellant
relies on the judgment of the Hon’ble Supreme Court in Swami Prahaladdas Vs
State of M.P. Reported in 1995 SCC (Crl.) 943, wherein the Hon’ble Supreme
Court has held that mere remark made by the accused to the deceased ‘to go
and die’ will not constitute the real abetment to commit suicide as enshrined
under Section 306 I.P.C. Similarly, the learned counsel relies on yet another
judgment of a Division Bench of Gujarat High Court in State of Gujarat VS
Sunilkumar Kanaiyalal Jain reported in 1997 Crl.L.J.2014 wherein also, the
Division Bench has taken the view that the remarks made by the accused to his
wife that ‘it is better for her to die today than tomorrow’ will not
constitute abatement as provided under Section 306 I.P.C. Following those two
judgments, a learned Judge of this Court (Hon’ble Justice Sudanthiram) in
Rukmani VS State represented by the Sub Inspector of Police reported in
2008(2) L.W.(Crl) 776 has also taken similar view to say that such words
which are uttered during quarrels cannot be given literal meaning so as to
say that the accused had abetted the commission of suicide. I am in full
agreement with the above judgments.

6. Apart from that, the learned counsel relied on the recent judgment
of the Honble Supreme Court in Sontui Rama Krishna VS Sonti Shanti Sree and
another reported in A I R 2009 Supreme Court 923, wherein the Supreme Court
has held that to constitute the abatement, it should be established by means
of acceptable evidence by the prosecution that the accused had the animus to
drive the woman to commit suicide. Mere uttering of words ‘ go and die’
itself will not constitute such abetment. Applying the above principles, to
assess as to whether the accused really had the animus and had driven the
woman to commit suicide, the Court has to take into account the credibility
of the circumstances. In this case, as I have already stated, except the
evidence to the effect that there were frequent domestic quarrels between the
appellant and D.1, there is no other material available on record to show
that the appellant had the intention to drive the woman to commit suicide .
It is also not on record that the deceased committed suicide because of any
abatement on the part of the appellant. Therefore, the conviction of the
appellant under Section 306 IPC cannot be sustained as the prosecution has
failed to bring home the alleged guilt of the appellant.

15.It is clear from the above judgments that merely because the
petitioners told the deceased that he can go and die, that by itself is not
sufficient to constitute an offence under Section 306 IPC. In this case,
this Court had already quashed the First Information Report insofar as the A-
3 is concerned mainly on the ground that no offence has been made out under
Section 306 IPC. This Court is of the considered view that the prosecution
has not made out a case against the petitioners for an offence under Section
306 IPC.

16.In the result, the proceedings in P.R.C.No.48 of 2016 on the file of
the Judicial Magistrate No.V, Madurai is hereby quashed. Accordingly, this
Criminal Original Petition is allowed. Consequently, connected
miscellaneous petitions are closed.

To

1.The Judicial Magistrate No.V, Madurai.

2.The Inspector of Police,
C-5 Karimedu (LO) Police Station,
Madurai City.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.

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