ILESH J. VORA, J.

1. Since the present applications arise out of the same set of facts and the issue before this Court in both the application is also common, the same are being decided by this common judgment and order.

2. By this application under Section 482 of Cr.P.C., the applicants – original accused seek to invoke inherent powers of this Court, praying for quashment of First Information Report being I-C.R.No. 216/2012 registered with City ‘A’ Division Police Station, Rajkot, for the offences punishable under Sections 306 and 114 of the Indian Penal Code and Section 3(i)(x) and Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1889.

3. Facts and circumstances giving rise to these applications are that, the deceased Ashok Chavda, employee of Rajkot Municipal Corporation (referred to hereinafter as ‘RMC’) committed suicide by hanging himself in Hotel Miracle at Ahmedabad. He left Rajkot on or before 02.07.2012 for which missing complaint was registered on 03.07.2012. Deceased was recruited as a labourer and work charge employee. On 10.11.2012, deceased along with other employees of the same cadre were transferred from Malaria branch to Drainage branch at Bedinaka, Rajkot. The applicant - Chirag Pandya being a City Engineer of RMC was in control and management of Drainage Department of Rajkot, whereas, the applicants - Jitendrasinh Zala and Ashvin Kanjaria were serving on the post of Dy. Engineer and Asst. Electrical Engineer, RMC respectively. Deceased - Ashok Chavda dissatisfied with his transfer posting and was irregular in attending the office. After resuming the duty at Drainage branch, Bedinaka, he was remained absent for 72 days for which the written memo in form of show-cause notices were served on different dates and the authority concerned after considering the reply thereof, accepted his explanation and closed the matter and whatever leave sought by the deceased sanctioned in accordance with applicable rules and regulations.

Deceased committed suicide on 04.07.2012. Before the incident of suicide, he wrote a letter in form of complaint dated 28.06.2012 addressed to Police Commissioner, Rajkot, alleging therein that, “the applicants accused being higher officials of the department intentionally insults him in front of other employees and intimidates with an intent to humiliate and harass him as he belongs to scheduled castes”. It is further alleged therein that he does not want to see the face of the applicants herein and have decided to commit a suicide and he stands firm in his decision to commit suicide. It is further alleged that it is necessary to teach lesson to higher officials and they are responsible for the act of suicide. It is further alleged that he was victimized by the higher officials and illegally served with show- cause notices for which he was compelled to submit a false reply thereof and had been directed to work in other field, which was not befitting to his qualification and job experience. It is further alleged that in Drainage department where he was transferred was totally new for him and did not have any work experience to do work of cleaner on the heavy vehicle meant for maintenance of drainage work etc. and working as a cleaner with such vehicles is dangerous to his life. He further alleged that he along with others have strongly opposed the transfer from Malaria Department to drainage branch, Bedinaka, Rajkot and lastly, deceased strongly urged that his letter should be treated as his complaint towards the commission of suicide.

The deceased left for Ahmedabad on 02.07.2012 and stayed at Hotel Miracle where he committed suicide by hanging himself. Before he could commit suicide, he prepared a suicide note allegedly written on 04.07.2012, which runs into 6-7 pages, wherein, the names of present applicants referred by him and further alleged that, earlier, he tried to commit a suicide, but somehow he could not get success and now he decided to commit suicide at Ahmedabad. It is alleged that after his transfer at drainage branch, he was asked to work as a sweeper without written order. It is further alleged that the accused herein are responsible for his act of suicide.

In the aforesaid facts, the father of the deceased Premji Chavda lodged an FIR against the applicants herein inter alia stating that since the date of transfer, the deceased was intentionally insulted and humiliated by the accused herein, as a result, deceased was under great stress and depression and due to constant torture and harassment, meted out to him by the applicants, he had no other option except to end his life by committing suicide for which the applicants being higher officials have abetted and instigated in the alleged act of suicide.

4. In view of registration of the offence as referred in para 1 of the judgment, the applicants have approached this Court, seeking quashment of the FIR mainly on the ground that the applicants hold higher posts in the establishment of Rajkot Municipal Corporation and any act done in discharge of their legal duty without there being any intention on their part to abet the commission of suicide by class IV employee, no ingredients of Section 306 of Indian Penal Code and provisions of Atrocities Act are attracted.

5. This Court has heard learned counsel Mr. Nandish Thakkar appearing for Thakkar and Pahwa Advocates., Mr. Ashish M. Dagli, Mr. N.K.Majmudar and Mr. L.B.Dabhi, learned Additional Public Prosecutor for the respective parties.

6. Mr. Nandish Thakkar appearing for and on behalf of the applicant Mr. Chirag Pandya, City Engineer, RMC, raised the following contentions :-

(i) That deceased was work charge labourer – helper. The transfer order was issued by Dy.Commissioner, RMC and in issuing the order, the applicant herein did not have played any role as it was sole discretion of the Dy. Commissioner to pass necessary transfer order in the interest of smooth functioning of the department. The deceased was not specifically selected for transfer, but total 12 employees of the same cadre were transferred from one department to other and out of 12, 6 employees were transferred from malaria department to drainage department.

(ii) That, the applicant being a City Engineer, was in – charge of drainage department. There are three zonal office of department and 7 Complaint Redressal Centers established by RMC for which 10 Dy. Engineers, 23 Addl. Asst. Engineers, 25 work Assistants and 47 class III and IV employees including labourers were working to look after the zonal offices and redressal centers. The deceased was transferred at Bedinaka Redressal Center at Rajkot and he assigned the job as a cleaner with the drainage vehicle and was never asked to work as a sweeper. In such circumstances, considering the hierarchy of the officers of the department, the deceased was not directly under control and supervision of the applicant herein and despite non-attending the office, the applicant never ever have issued any show-cause notice or memo to the deceased. Thus, making his reference in the suicide notes would not ground to infer that the applicants had abetted the deceased to commit a suicide.

7. In the aforesaid contentions, learned counsel Mr. Thakkar submitted that on plain reading of the FIR and suicide notes, by no stretch of imagination, it can be said that necessary ingredients to constitute an offence of abetment as defined under Section 306 of Indian Penal Code are made out. In support of his submissions, reliance has been placed on the case of Madan Mohan Singh Vs. State of Gujarat [2010 (8) SCC 628]. In a cited case, the deceased was a driver in the Microwave Project Department and had undergone a bypass surgery just before the occurrence of incidence and his doctor has advised him against performing any stressful duties. The accused was a superior officer to the deceased. When the deceased failed to comply with the order of the accused, the accused became angry and threatened to suspend the deceased, rebuking him very harshly for not listening to him. The accused also asked the deceased how he will found the will to live despite being insulted so. The driver – deceased committed suicide. In this background facts and considering various earlier judgments, the Apex Court held that, to bring home any charge under Section 306 read with Section 107 of Indian Penal Code against the accused, there must be allegations to the effect that the accused had either instigated the deceased in some way to commit suicide or had engaged with some other persons in conspiracy to do so or that the accused had in some way aided any act or illegal omission to cause the said suicide. The Apex Court further held that if making of observation by superior officer regarding work of his subordinate, is termed as abetment to suicide, it would almost impossible, for superior officer to discharge their duties as senior employees. Considering the facts of the present case, learned counsel has also relied on the case of A.K.Chaudhary Vs. State of Gujarat [(2005) 3 GLH 544], to contend that the ingredients of abetment of suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement /incitement by the accused leaving no option but to commit suicide.

8. In the aforesaid submissions, learned counsel Mr. Thakkar submitted that if the allegations leveled in the FIR and statement of the deceased in form of suicide notes, accepted on its face value as it is, do not make out a case for commission of the alleged offences namely abetment of suicide and alleged offence under the Atrocities Act. In such circumstances, continuation of criminal proceedings would unnecessary harassment to the applicant and without any justifiable cause, he has to suffer the trial proceedings which is nothing, but a sheer abuse of process of law and Court. In such circumstances, he prayed that the case is made out to exercise inherent powers to quash the criminal proceedings.

9. Mr. Ashish M. Dagli, learned counsel for the applicants namely Jitendrasinh Zala and Ashvin Kanjariya submitted that the applicants were holding the higher posts in Rajkot Municipal Corporation and during discharging of their official duty and for smooth functioning of administration, the deceased was called upon to resume his duty at drainage branch, but somehow, deceased was not ready to resume the duty and was absent for about 72 days. Thus, in such circumstances, after the order of transfer dated 10.11.2012, the deceased was served with notices on 12.12.2011, 21.04.2012 and 12.05.2012. On every occasion, the deceased had confessed for the alleged irregularities in attending the office and asked the authority to condone his act and accordingly, the authority concerned accepted his explanation without any further action and whatever leave sought by him was sanctioned. In this background facts, it was submitted that deceased was disturbed and was in great stress as he was protesting his transfer from one department to other and due to his disturbed state of mind, he wrote a letter to the Police Commissioner and also prepared a suicide note, wherein, no any specific allegations of abetment against the applicants having been alleged. The order of transfer was passed by Dy. Commissioner of Rajkot. Thus, the factum of suicide notes accepted as it is, then also no offence much less than under Section 306 of Indian Penal Code is made out against the applicants. A simple act of the applicants to maintain a discipline, does not amount to instigation or intentionally aiding in commission of suicide.

10. Mr. Dagli thus urged that when the prima facie no case is made out against the applicants, then continuation of criminal proceedings would result in injustice and prevent promotion of justice and therefore, in order to prevent the misuse of process of law and Court and for the ends of justice, the impugned FIR may be quashed by exercising power under Section 482 of Cr.P.C.

11. On the other hand, countering the contentions raised by the applicants, learned counsel Mr. N.K.Majmudar appearing for and on behalf of the second respondent – original informant and State Counsel Mr. L.B.Dabhi submitted that, the allegations leveled in the FIR and facts disclosed in the suicide notes, constitute a cognizable offence and based on this, the FIR was registered and still investigation is not completed due to interim order passed by this Court. Thus, it was urged that at this stage, it cannot be said that no prima facie case is made out against the applicants; that the criminal proceedings cannot be quashed when the allegations made in the FIR and suicide notes disclosed the commission of offence; that at this stage, the High Court should not go into the merits of the contents of the suicide notes; that the deceased was harassed and humiliated by the accused herein and there is a specific allegation to this effect disclosed by the deceased in his suicide notes; that he was not permitted to mark his presence at transferred place and was asked to do sweeper work without office order; that the deceased did his post graduation in Arts stream and asking him to do work of sweeper is directly impact on his self esteem and self respect and therefore, he was in great stress and circumstances as such were created, the deceased had no option except to commit a suicide; that the deceased was having happy married life and having two minor kids and therefore, in such circumstances, no prudent man would take such drastic step which would suggestive of the fact that the accused being a higher officials have abetted and/or aided the alleged commission of suicide.

12. In support of the aforesaid submissions, learned counsels appearing for and on behalf of the respondents placed reliance on the case of Narayan Malhari Thorat Vs. Vinayak Bhagat [(2018) AIJEl-SC 3062], to contend that where the suicide notes made definite allegations against the accused, the High Court in its extraordinary jurisdiction will not justify in entering into question whether the accused had the requisite intention to aid or instigate or abet the commission of suicide, more particularly when the investigation is yet to be completed. In such circumstances, it was submitted that no any exceptional case is made out to exercise inherent powers to quash the FIR and therefore the applications may not be entertained and are liable to be dismissed.

13. The applicants herein have been charged for the act of abetment of suicide and other provisions as referred in para 1 of this judgment. The entire prosecution case is based on suicide notes. One suicide note in form of letter dated 28.06.2012, addressed to Police Commissioner, Rajkot written by the deceased in his own handwriting, whereas, second one was written by him before the incident, which runs into 6 to 7 pages. It is not in dispute that before 10.11.2012, the deceased being labourer and/or work charge employee, had served with Malaria Department, RMC and the Dy. Commissioner, RMC vide order dated 10.11.2012 transferred 16 class IV employees from one department to other. Out of 16, 6 employees including the deceased were transferred from Malaria Department to drainage branch, Bedinaka, Rajkot. The applicant Chirag Pandya was posted as City Engineer and the drainage branch was under the City Engineer. The applicant Jitendrasinh Zala was posted as Dy. Engineer, whereas, Mr. Ashvin Kanjaria worked as Asst. Engineer (Electrical). The deceased was the member of scheduled castes. Deceased was dissatisfied with the transfer order. So far as work of drainage branch is concerned, it is the say of the deceased that, he was assigned the job as a cleaner with heavy drainage vehicle and according to his grievance, work as a cleaner is life threatening and without any experience, he could not perform his job and therefore, he strongly protesting his posting in drainage branch.

14. In the aforesaid background facts, since from the order of transfer, the deceased was irregular in attending the office. During 7 months and 13 days at his new job, he remained absent for about 72 days without prior intimation to his immediate officer, as a result, he was served with office memo for thrice and after receiving explanation from him, no any departmental action was being taken by the officer concerned.

15. On careful consideration of two suicide notes dated 28.06.2012 and 04.07.2012, it appears that deceased was in great stress and depression and had decided to end his life. He himself had mentioned in the letter addressed to Police Department that his brain is unstable and he does not want to see the face of the present applicants herein as he will not get proper justice from them and he was stands firm in his decision to commit suicide. In the suicide notes, the deceased expressed his anguish towards his posting at drainage branch and in order to teach the lesson to the applicants herein, he decided to end his life.

16. Based on suicide notes and allegations leveled in the FIR, it is the case of the prosecution that deceased was obstructed in performing his duty at drainage branch and he was asked to work in lower cadre i.e. sweeper for which no work order was issued despite his demand and the work as a cleaner with sewerage jetting machine is life threatening to him. The second respondent - father of the deceased lodged an FIR wherein, it is alleged that due to mental torture and harassment meted out to the deceased by the applicants, the deceased was in great stress and it is difficult for the deceased to work at his new place and therefore, the deceased being a member of scheduled castes was harassed and humiliated which ultimately led him to commit a suicide.

17. In such circumstances, the issue falls for consideration of this Court whether the contents of the FIR and suicide notes as they stand, make out an offence within the meaning of Section 306 of Indian Penal Code and provisions of the Atrocities Act

18. The answer of this Court is No.

19. The reasons for the answer :-

19.1. The substantive offence against the applicants is under Section 306 of Indian Penal Code, which provides that if any person commits suicide, whoever abets the commission of such suicide, shall be liable to be punished with the sentence. The term “abetment” is not defined under Section 306 of Indian Penal Code. The parameters of abetment have been stated in Section 107 of Indian Penal Code. Section 107 of IPC which contains the definition of abetment has three clauses and if an act of person falls within the purview of any of them, it would amount to abetment. As per the definition of abetment to things, the abetment is constituted by (i) instigating a person to commit an offence or (ii) engaging in a conspiracy to commit it and/or (iii) intentionally aiding a person to commit it.

19.2. In view of the aforesaid legal statutory provisions, in order to prove the charge of abetment, the accused must have instigated a person to do a thing or intentionally aided the deceased to commit suicide or engaged in a criminal conspiracy to commit the suicide. In all three clauses, the prosecution must prove the elements of mens rea i.e. guilty mind of the accused.

19.3. In every case, whether there was instigation or aiding or elements of conspiracy exists or not is a question to be decided by facts of each case.

19.4. In the facts of the present case, the deceased was in great stress and depression as he protested his transfer order to drainage branch. The order of transfer having not been passed by any of the applicants nor there is allegation that they had played an active role in transferring the deceased from Malaria Department. Deceased himself, in his letter to the Police Commissioner admitted that he did not like his job as a cleaner with the vehicle meant for drainage work. In such circumstances, the allegations that he was asked to work as a sweeper or in a lower cadre cannot be accepted. In view of his continuous absentness, which suggestive of the fact that by any means, he did not intend to work with the drainage branch. The anguish expressed by the deceased in two suicide notes clearly establish that by act of his suicide, he wants to take revenge against the higher officials like applicants, as such who having no grudge against the deceased. The City Engineer Mr. Pandya having no any direct conversation with the deceased, nor he issued any memo or show-cause notice. Thus, this Court is of considered view that the applicant Chirag Pandya cannot be held responsible for transfer of the deceased. Prima facie it appears that he being a highest officer and in-charge of the department, deceased had alleged against him with respect to his transfer and other irrelevant issues referred in the suicide notes. So far as charge against the applicants Jitendrasinh Jala and Mr. Ashvin Kanjaria is concerned, they have been arraigned as accused because of they are higher officials in hierarchy of drainage department. Both the applicants are responsible officers for the day to day management of the branch and they are duty bound to implement the rules of service conditions. Since the order of transfer, deceased was irregular in attending the office and was remained absent for about 72 days for which notices to resume the office were served by the Dy. Engineer. In such circumstances, merely issuing the notice and/or memo for indiscipline, in my considered opinion, would not tantamount to inciting or provoking or instigating the deceased to commit suicide. There is no any allegation that the deceased was continuous harassed and insulted deliberately without justifiable cause or reason. A simple act of issuing notice or memo for the irregular attendance of the deceased, for which he was otherwise duty bound to serve the department, would definitely not amount to abetment of things as defined under Section 107 of Indian Penal Code. What emerges from the suicide notes is that, deceased was protesting his transfer, for which the applicants having no role to play and after his transfer, considering the job assigned to the deceased, it cannot be said that he had been assigned the work of lower category. It was not the deceased alone to transfer from department to other, but in all 16 persons were transferred by the Dy. Commissioner, RMC. The act of suicide is not the remedy for the deceased. He could have ventilated his grievance before the Commissioner or Dy. Commissioner of RMC. It is not in the hands of the applicants to retransfer the deceased. Thus, on careful examination of the suicide notes, it appears that the deceased was very emotional and sentimental person and due to his posting to another department, he could not taken it in a positive way. The transfer may be result into physiological immediate imbalance, consequently deceased fell into depression and could not control sentiments of expectations which may give temptation to him to commit suicide and therefore, considering his behavior after the transfer which raise an inference that in order to teach the lesson to the higher officials of Rajkot Municipal Corporation and to demonstrate his protest against the posting of transfer, the deceased had taken a drastic step.

19.5. Thus, considering the aforesaid aspects as discussed hereinabove, the applicants had no intention to drive the deceased to commit suicide and they could not anticipate the same. To bring home the applicants for the charge under Section 306 of Indian Penal Code, the intention and mens rea are main ingredients of the offence of abetment and they are lacking in the present case.

19.6. Considering the peculiar facts and circumstances of the present case, it is apt to refer to and rely on the judgment of the Supreme Court delivered in the case of Geo Verghese Vs. State of Rajasthan [Crim. Appeal No.1164/2021], wherein, a student of 9th class committed a suicide leaving the suicide note, alleging the mental harassment meted out by the accused Geo Verghese. The Apex Court after referring to various judgments, held that so far as suicide note is concerned, despite our minute examination of the same, all we can say that suicide note is rhetoric document, penned down by the immature mind. A reading of the same also suggest that hyper sensitive temperament of the deceased which led him to take such an extreme steps, as the alleged reprimand by the accused who was his teacher, otherwise, would not ordinarily induced a similarly circumstanced student to commit suicide. The Apex Court further held that in the absence of any material on record, even prima facie, in the FIR or statement, pointing out any such circumstances showing any such act or intention that the accused intended to bring about the suicide of his student and it would be absurd to even think that the appellant had any intention to place the deceased in such circumstances that there was no option available to him except to commit suicide.

20. Bearing in mind the factual aspect of the case, and legal principles propounded by the series of judgments of the Apex Court, this Court is of view that the contents of the suicide notes and allegations leveled in the FIR are not sufficient, wherefrom an inference of the accused having abetted commission of suicide by the deceased may necessarily be drawn. Mere allegation of conspiracy or harassment would not sufficient to raise the inference about the abetment of suicide. Thus, this Court is in complete agreement with the contentions raised by learned counsel for the applicants that the contents of the FIR and allegations leveled in the suicide notes as they stand do not make out an offence within the meaning of Section 306 of Indian Penal Code.

21. Mr. Majmudar, learned counsel for the informant submitted that at this stage, the Court should not exercise extraordinary jurisdiction to stifle the legitimate prosecution and let the police be permitted to investigate the matter. The contention as raised having no merits. It is settled position of law that where no prima facie case is made out involving the applicants accused in the alleged offence, the High Court is obliged in law to exercise its jurisdiction to quash the proceedings under Section 482 of the Code. It is relevant to refer the observations made by the Apex Court in the case of Geo Verghese (supra). The Apex Court while quashing the FIR observed that in the absence of specific allegation and material of definite nature, not imaginary or inferential one, it would be travesty of justice to ask the appellant accused to face the trial. It is further observed that a criminal trial is not exactly a pleasant experience and the appellant who is a teacher would certainly suffer great prejudice, if he has to face prosecution on absurd allegations of irrelevant nature. In the facts of the present case, the applicants are high ranking officials of the Corporation and had not played any active role either directly or indirectly in abetting or aiding or provoking the deceased to commit a suicide. In such circumstances, this Court is convinced that the continuation of the proceedings against the applicants would amount to harassment to them and same is abuse of process of law and Court.

22. For the foregoing reasons, this Court is of prima facie view that the ingredients of abetment as laid down in Section 107 is complete absent in the facts of the case and as such, Section 306 of Indian Penal Code is not at all attracted. It needs to be noted that, on account of invocation of Section 306 of Indian Penal Code and considering the caste of the deceased, the police has invoked the provisions of Atrocities Act. When the charge under Section 306 of IPC prima facie not established, the charges under Sections 3(i)(x) and 3(ii) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are also not made out.

23. In the result, the parameters for quashing of criminal proceedings laid down by the Apex Court in the case of State of Haryana Vs. Bhajan Lal, [1992 Suppl. (1) SCC 335], the parameters (i) and (ii) are attracted and accordingly, this Court is of considered view that this is a fit case where extraordinary power is required to be invoked to quash the FIR and other consequential proceedings thereof. Accordingly, both applications are allowed. The FIR being I-C.R.No. 216/2012 registered with City ‘A’ Division Police Station, Rajkot and other consequential proceedings arising therefrom for the offences under Sections 306 and 114 of Indian Penal Code and Sections 3(i)(x) and 3(ii)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are quashed qua the applicants herein. Rule is made absolute to the aforesaid extent.