Gujarat High Court
Arvind Khimabhai Parmar vs State Of Gujarat on 18 April, 2024
NEUTRAL CITATION
R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4684 of 2017
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation NO
of the Constitution of India or any
order made thereunder?
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ARVIND KHIMABHAI PARMAR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR CHINTAN S POPAT for the Applicant(s) No. 1,2,3,4
HCLS COMMITTEE for the Respondent(s) No. 2
MR KEYUR A VYAS for the Respondent(s) No. 2
MR DHAWAN JAYSWAL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/04/2024
ORAL JUDGMENT
1. Rule. Learned APP Mr. Dhawan Jayswal for respondent no.1 - State of Gujarat and learned advocate, Mr. Keyur Vyas for the respondent no.2 waive service of notice of Rule.
2. By way of present application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed for quashing and setting Page 1 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined aside First Information Report being C.R. No.I- 3/2017 registered with Madhavpur Police Station, Porbandar for the offences under Sections 306, 498A, 323 and 114 of the Indian Penal Code qua the applicants.
3. The gist of the FIR is as under, The sister of the complainant viz., Rupiben married with one Khimabhai Murubhai Parmar (i.e. the original accused no.1) before 35 years and out of said wedlock, they have been blessed with three sons and two daughters, however when the said Rupiben used to come at her parental home, she complained about the ill-treatment at the hands of the original accused no.1 but at that time, after persuading her, she was returned back to her matrimonial house, however on 01.12.2016, the complainant received call from one Jaysukhbhai, wherein he has informed that his sister, Rupiben has committed suicide by setting herself ablaze and the dead body is taken to Government Hospital, Porbandar for performing postmortem and thus, FIR has been lodged against the accused persons alleging inter alia that the accused have meted out mental and physical torture to the deceased and because of which, the deceased has committed suicide.
4. Heard learned advocate, Mr. Chintan Popat for the applicants, learned APP Mr. Dhavan Jayswal for the respondent no.1 and learned advocate, Mr. Keyur Vyas for the respondent no.2.
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5. Learned advocate, Mr. Chintan Popat submitted that the impugned FIR has been filed against total 5 accused persons for the alleged offences, wherein the applicants are shown as accused nos.2 to 5. Learned advocate submitted that the applicant nos.1 and 3 are the son of the deceased, whereas the applicant nos.2 and 4 are the wife of the applicant nos.1 and 3 respectively and the original accused no.1 is the husband of the deceased. Learned advocate read over the allegations leveled in the impugned FIR and submitted that bare perusal of the contents of the FIR clearly goes on to show that essentially the allegations were leveled against the original accused no.1, who has not approached this Court for quashing of the impugned FIR. Learned advocate submitted that immediately after the registration of the impugned FIR, the applicants have approached this Court for quashment of the impugned FIR, wherein this Court while issuing notice vide order dated 20.02.2017, protected the applicants by passing an order of no coercive steps. Learned advocate submitted that thereafter, the investigation was carried out and on conclusion of the same, the chargesheet came to be filed against the original accused no.1 and, thereafter, trial against him was concluded before the court concerned and at the end of trial, the original accused no.1 has been acquitted from the charges leveled against him, copy of said order Page 3 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined has been placed on record by way of filing an additional affidavit. Learned advocate has taken this Court through the findings given and conclusion arrived at by the learned Judge while passing an order of acquittal and submitted that the learned Judge has considered and appreciated all the evidence available on record. Learned advocate submitted that in the operative part of the order, the learned Judge has made discussion in detail so far as the depositions of witnesses are concerned. It is found out from the record that the original complainant is passed away during the course of proceedings and, therefore, his deposition could not be recorded but rest of the witnesses are examined by the prosecution witnesses but not a single witness has deposed against the applicants and on the contrary, they have deposed in a very categorical terms specifically stating that there was no physical and mental harassment meted out to the deceased by the original accused no.1 as they were living happily married life as husband and wife and the witnesses were closed relatives of the deceased as well as the original accused no.1. Learned advocate submitted that even deposition of another son, who has not been made accused, was also recorded, wherein he has stated in a very categorical terms that the original accused no.1 has not made any physical or mental torture to the deceased and the deceased was suffering from Page 4 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined certain serious/ chronic disease and due to said illness, the deceased was tired from her life and, therefore just to get rid of that problem, she had committed suicide. Learned advocate submitted that therefore considering and evaluating the above stated factual aspects, the learned Judge has passed an order of acquittal so far as the original accused no.1 is concerned.
6. Learned advocate submitted that essentially at the time of registration of the complainant, the complainant has put much emphasis upon the act, conduct, behavior of the original accused no.1 and all the allegations are leveled against the original accused no.1, however at the time of conducting trial against the original accused no.1, the learned Judge has considered all allegations leveled against him and passed an order of acquittal after completion of full-fledge trial, therefore if the present applicants would be put to face trial, in that event, it would become futile exercise and wastage of judicial time.
7. Learned advocate, therefore, submitted that considering the principle of law laid down by the Hon'ble Apex Court in case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the impugned FIR is required to be quashed and set aside. It is, therefore, urged that the present Page 5 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined application may be allowed.
8. On the other hand, learned APP has objected the present application with a vehemence and submitted that after the occurrence of the incident, the complainant is registered by the brother of the deceased and at the time of registration of complaint, the complainant has narrated entire facts of sequence of incidents and the name and specific role of the accused is clearly mentioned in the FIR. Learned advocate submitted that there is prima facie case found out and, hence, discretion may not be exercised in favour of the applicants. It is, therefore, urged that the present application is required to be rejected.
9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the deceased had married with the original accused no.1 before 35 years of the incident and after the incident, whenever the deceased used to visit her parental home, she complained about the ill- treatment at the hands of the original accused no.1 and at that point of time, she was sent back to her matrimonial house after persuading her that in marriage life, such things happen, however on the day of incident, the complainant received call, wherein he was informed about the suicide committed by the deceased and, hence in a hit of moment, the complainant has lodged FIR narrating entire sequence of incident of events, which led Page 6 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined to filing of the present application by the applicants, who have been protected by this Court at the time of issuing notice by an order of no coercive steps but investigation was directed to be continued. It is required to be noted that pursuant to the said order, the investigation was carried out and chargesheet was filed qua the original accused no.1 and not against the applicants but after submission of the chargesheet against the original accused no.1, the trial was proceeded with and at the end of trial, the original accused no.1 has been acquitted by the competent criminal court by passing an order of acquittal, copy of which is already produced on record by the applicants.
10. At this stage, it is required to be noted that FIR has been filed against total 5 accused persons, wherein the original accused no.1 is the husband of the deceased, whereas the applicant nos.1 and 3 are the son of the deceased, whereas the applicant nos.2 and 4 are the wife of the applicant nos.1 and 3 (i.e. daughter-in-law of the deceased) respectively. A bare perusal of the allegations leveled in the FIR, it is found out that essentially the allegations are leveled against the original accused no.1, who is husband of the deceased and not against the applicants. It is also found out that it is the specific case of the complainant that the original accused no.1 has meted out mental and physical torture to the Page 7 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined deceased and the said fact has been informed by the deceased to the complainant, which is narrated by him. During the course of investigation, the statements of the witnesses have been recorded by the IO and on perusal of those statements, not a single witness has stated about the mental and physical tyranny meted out to the deceased by the applicants and even they have not stated against the original accused no.1 also and in fact, they have stated that there was no physical or mental torture meted out by the original accused no.1. Further, the statement of the son of the deceased, who is not made accused, is also recorded by the IO, who has stated in a very categorical terms that the deceased was suffering from certain serious/ chronic disease and due to said illness, the deceased was tired from her life and just to get rid of that problem, she had committed suicide. Thus from the above facts, it is clear that no ingredients of the alleged offences are made out against the applicants.
11. Over and above that, as stated above, after full-
fledge trial, the original accused no.1 has been acquitted by the competent criminal court and copy of the said order is placed on record by the applicants. I have considered the said order of acquittal passed in favour of the original accused no.1 including the observations made by the concerned court at the time of passing said order. On perusal of the observations made by the Page 8 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined concerned Judge while passing an order of acquittal, it is found out that the learned Judge has considered and appreciated all the evidence available on record including the depositions given by the prosecution witnesses, who are relatives of the deceased as also the original accused no.1 and if we look at the observations made by the concerned Judge while evaluating the depositions of the prosecution witnesses, it is found out that not a single witness has deposed against the applicants and even against the original accused no.1, which led to passing of an order of acquittal.
12. At this stage, this Court would like to refer to Section 113A of the Indian Evidence Act, which deals with 'Presumption as to abetment of suicide by a married woman'. Section 113A reads as under, "113A: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative or her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this Page 9 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined section, 'cruelty' shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860."
13. On perusal of the aforesaid section, it is found out that this section The section requires proof that (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. If these facts are proved, the court 'may' presume. The words are not 'shall' presume. Such a presumption can be drawn only after the court has taken into account all the circumstances of the case. The inference would then be that the 'husband or relatives' abetted her suicide. If there is no evidence of cruelty, the section does not apply. In a judgment in case of State of Punjab Vs. Iqbal Singh, reported in AIR 1991 SC 1532 as well as in a judgment in case of State of Himachal Pradesh Vs. Nikku Ram, reported in AIR 1996 SC 67, it was held that in the absence of any evidence to show that the diseased was being harassed within the meaning of Explanation I(b) of section 498A IPC, the presumption under section 113A cannot be raised. Further, the Hon'ble Supreme Court in a judgment in case of State of West Bengal Vs. Orilal Jaiswal reported in AIR 1994 SC 1418 has considered the question as to 'standard of proof'. It observed that in a criminal trial, the degree of proof is stricter than what is required in a civil Page 10 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined proceeding. In a criminal trial, however intriguing may be the facts and circumstances of the case, the charges made against may be in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498-A in the Indian Penal Code and section 113-A in the Evidence Act. It is also observed in catena of decisions that the court should be extremely careful in assessing evidence under section 113A for finding out if cruelty was meted out. If it transpires that a victim committing suicide was hyper sensitive 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 would not be satisfied for holding that the accused charged of abetting the offence of suicide was guilty.
14. At this stage, this Court would like to place reliance upon the judgment of the Hon'ble Apex Court in case of Mangat Ram Vs. State of Haryana, reported in (2014) 12 SCC 595, the Hon'ble Apex Court considering the provisions of Section 498A and 306 of IPC in the light of the presumption under Section 113A of the Evidence Act, observed as under: -
"30. We are of the view that the mere fact that Page 11 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113- A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.
31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana [(2004) 12 SCC 257 : 2004 SCC (Cri) 217] , wherein this Court has Page 12 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113- A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC."
15. Therefore in view of the above facts, if the facts of the case on hand are examined, in that event, it is clear that admittedly the span of marriage life between the original accused no.1 and the deceased was more than 35 years and as can be seen Page 13 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined from the depositions of the prosecution witnesses including the son of the deceased, there are no mental and physical harassment at the hands of the applicants, which attracts the provision of Section 113A of the Indian Evidence Act. Further as stated above, after appreciating and evaluating the oral as well as documentary evidence, the concerned Judge has recorded acquittal of the original accused no.1, against whom serious allegations are leveled. Therefore in the facts of the present case, the ingredients of Section 113A of the Indian Evidence Act are not attracted qua the applicants.
16. Having regard to the provisions of Sections 107 and 306 of the Indian Penal Code and the principle laid down by the Hon'ble Supreme Court in various decisions referred to in the case of Lalitbhai Vikramchand Parekh Vs. State of Gujarat delivered in Criminal Misc. Application No.16032 of 2014 & allied matters decided on 10th April, 2015, it is apparent that in a case under Section 306 of the Indian Penal Code, there should be correct mens rea to commit the offence under this section and there should be direct and active role by the accused, which led the deceased to commit the suicide, that is to say that there cannot be same evidence of "instigation" or "initial assistance"
by the accused to commit suicide by the victim/deceased. Further in order to bring the case within the purview of 'Abetment' under Page 14 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused, which in the facts of the present case, is lacking.
17. At this juncture, it would be beneficial to reproduce the relevant provision contained in Section 306 IPC pertaining to Abetment of suicide.
"306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
18. What is "Abetment of a thing" has been described in Section 107 which reads as under: -
"107. A person abets the doing of a thing, who--
First. --Instigates any person to do that thing; or Secondly. --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. --Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. --A person who, by willful misrepresentation, or by willful Page 15 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
19. From the bare reading of the said provisions, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established.
20. This Court would like to refer to the judgment of the Hon'ble Apex Court in case of M. Mohan Vs. State Represented by the Deputy Superintendent of Police, reported in (2011) 3 SCC 626, wherein the Hon'ble Apex Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: -
"41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has examined different shades of the meaning of "instigation". Para 20 reads as under : (SCC p. 629) "20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary Page 16 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn.
42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para 17) the Court should be extremely careful in assessing the facts and circumstances of Page 17 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined 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 her life by committing suicide. If it appears 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 of abetting the offence of suicide should be found guilty.
43. This Court in Chitresh Kumar Chopra v.
State (Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010) 3 SCC ( Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "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 others. Each person has his own idea of self-esteem and selfrespect. Therefore, it Page 18 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined 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.
44. 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.
45. 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 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 this act must have been intended to push the deceased into such a position that he/she committed suicide."
21. At this stage, I would like to place reliance upon the observations made by the Hon'ble supreme Court in case of Lalitbhai Vikramchand Parekh (supra), which are as under, "11. Abetment of suicide is made punishable by Section 306 which provides that "if any person commits suicide, whoever abets the commission of such suicide, shall be punished." (emphasis supplied) The section Page 19 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined does not define the expression" "abet", nor is the expression defined in Chapter II of the Code which deals with the general explanations".
However, Chapter V of the Code
incorporates an elaborate statement of
"abetment". Section 107 in this Chapter
defines "abetment of a thing", while
Section 108 defines the expression
"abettor". This is how these sections run :
Section 107 - Abetment of a thing "A person abets the doing of a thing, who First.- Instigates any person to do that thing or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the .doing of that thing.
Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.---Whoever, either prior to or at the time of the commission of an Page 20 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
12. Section 108 - Abettor- "'A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor".
Explanation 1.- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2.- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
Explanation 3.- It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, of any guilty intention or knowledge.
Explanation 4.- The abetment of an offence being an offence, the abetment also an offence.
Explanation 5.- It is not necessary to Page 21 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined the commission of the offence of abetment by conspiracy than the abettor should concern the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed."
13. As the expressions "abetment" and "abettor"
have been legislatively defined, the ordinary dictionary meaning of the expressions would not be determinative of their import. It may, however, be useful to have a look at the ;dictionary meaning of the expression "abet". According to Webster, Webster's Third New International Dictionary Vol. I, the expression "abet", means to incite, encourage instigate, or countenance-now usually used disparagingly. According to Wharton, Whartone's Law Lexicon, 14th ed., "abet" means to stir up or excite, to maintain or patronize : to encourage or set on and the "abettor" is an instigator or setter on, one who promotes or procures a crime to be committed. Stroud, Stroud's Judicial Dictionary, 4th ed., has given various meanings of the expression "aid" or "abet", based on judicial pronouncements in England, in the context of different statutes. Thus, according to Hawkins, 51 L J.M.C. 78-R. v. Coney, J., "To constitute an aider or Page 22 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined abettor, some active steps must be taken, by word or action, with intent to instigate the principal or principals. Encouragement does not, of necessity, amount to aiding and abetting. It may be intentional or unintentional. A man may unwillingly encourage another in fact by his presence, by misinterpreted gestures, or by his silence or non-interference- or he may encourage intentionally by expressions, gestures, or actions, intended to signify approval. In the latter case, he aids and abets; in the former he does not." Stroud also cites the case of Du Cros v.
Lambourne, 1907 (1) K. B. 40.. in which it was held that "the owner in, and in control of, a motor car which is being driven at an improper speed by a driver who is not his servant, "aids or abets" in the offence if he (the owner) does not interfere." It is further noticed on the basis of decision in the case of Rubie v. Faulkner, 1980 (1) K.B. 571 : "For a supervisor of a learner driver to see that an unlawful act is about to be done and to fail to prevent it is he can is for him to aid and abet." It is further noticed, on the authority of the decision in the case of Callow v. Tillstone, 83 L.T. 411, that "A man does not by negligence aid and abet a person to Page 23 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined expose unsound meat for sale." It is further noticed, on the basis of the decision in the case of Ackroyds Air Travel v. Director of Police Prosecutions, 1950 (1) All. E.R. 933 and Thomas v. Lindop, 1950 (1) All. E.R. 966, that "If a person knows all the circumstances which constitute the offence he will be guilty of aiding and abetting whether he knew that they did in fact constitute the offence or not " Stroud also quotes Lord Goddard C J. in Ferguson v. Weaving, 1951 (1) K.B 814, that "it is well know that the words 'aid and abet are apt to describe the action of a person who is present at the time of the commission of an offence and takes some part therein."
14. It may be useful to refer to some of the early English decisions, dealing with different ways of taking part in a felony, it was recognised that a felony may be committed by the hand of an "innocent agent" who, having no blamable intentions in that he did, incurred no criminal liability by doing it. In such a case, the man who "instigates" this agent is the real offender; his was the last mens rea that preceded the crime, though it did not cause it "immediately but mediately". "Thus, if a physician provides a poisonous draught and Page 24 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physician-and not the innocent nurse-is the principal in the first degree Kel. 52 (T.A.C.)." In English Law, as it stood before the later developments, "a principal in the second degree is one by whom the actual perpetrator of the felony is aided and abetted at the very time when it is committed; for instance, a car-owner sitting beside the chauffeur who kills some one by over-fast driving, or a passenger on a clandestine joy-riding expedition which results in manslaughter 1930 (22) Cr, App. R. 70 : 144 L.T. 185, "or bigamist's second 'wife' if she knows he is committing bigamy, or even be spectators if they actively encourage such a contest even by mere applause. "But a spectator's presence at a prize-fight docs not of itself constitute sufficient encouragement to amount to an aiding and abetting 1882 (8) Q.B.D. 534." It was also recognised that a man may effectively "aid and abet" a crime and at the very moment of its perpetration, without being present at the place where it is perpetrated. "To be guilty of aiding and abetting, a person must either render Page 25 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined effective aid to the principal offender or else must be present and acquiesce in what he is doing. Before a person can be convicted of aiding and abetting the commission of an offence, be must at least know the essential matters which constitute the offence 1951 (1) All. E.R. 412(414)."
"But acquiescene sufficient to constitute the offence may be established by evidence of the accused persons motive and of his subsequent conduct 1951 (1) All. E.R. 464."
In the category of "accessory before the fact" comes a person who "procures or advises" one or more of the principals to commit the felony. This "requires from him an instigation so active that a person who is merely shown to have acted as the stakeholder for a prize-fight which ended fatally, would nut be punishable as an accessory 1875 (2) C.C.R. 147." "The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him from liability for it. But a man who has councelled a crime does not become liable as accessory if. instead of any form of the crime suggested, an entirely 'different offence is committed 1936 (2) All. E.R.
813." Kenny, Kenny's Outlines of Criminal Law, New ed. by J.W.C. Turner, p. 88, Page 26 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined points out that it is not always easy to decide whether or not the crime actually committed comes within the terms of the "incitement." so as to make the inciter legally responsible for it. He further observed that the courts in some of the older cases tended to "take a strict view of the facts" and refers by illustration to the case of R. v. Saunders, Kel. 52 (T.A.C ) and Archer in 1578. referred to in Plowden.
15. For obvious, reasons an act of suicide is not penal, even though an unsuccessful attempt at it is punishable. Suicide takes the victim or the perpetrator outside the purview of penal consequences, even though the common law in England at one time endeavoured to deter men from this crime by the threat of degradations to be inflicted upon the "suicide's corpose", which by a natural, if unreasoning association of ideas, were often a "potent deterrent", and also by threatening the forfeiture of his goods, a "vicarious punishment" which though falling wholly upon his surviving family, was likely often to appeal strongly to his sense of affection. Thus the man who feloniously took his own life was at one time "buried in the highway", with a stake through his body; and his goods were Page 27 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined "forfeited". The burial of suicides lost its gruesome aspect in 1824 when the original mode was replaced by the practice of burial "between the hours of nine and twelve at night", without any service. In 1870, the confiscation of the goods of suicides was put to an end in the general abolition of forfeitures for felony. And in 1882, the statute removed every penalty, except the purely ecclesiastical one that the interment must not be solemnised by a burial service in the full ordinary Anglican form, Kenny's Outlines of Criminal Law, New ed. by J.W.C.,, Turner, p. 138.
16. Halsbury, in Halsbury's Law of England, 4th
-ed. paras 42 to 44 notices some of the English decisions in the matter of classification of offence and complicity in the crime. Thus, a person who '"assists the perpetrator at the time of its commission, or if he assists or encourages the perpetrator before its commission, was held liable 1970 (2) Q.B. 54." According to R.V. Gregory (1867) L.R.I. C.C.R. 77 "any person who aids, counsel or procures the commission of an offence, whether an offence at common law or by statute, and whether indictable or summary, is liable to be tried and punished as a principal offender." Mere presence at the commission Page 28 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined of the crime is not enough to create criminal liability, nor is it enough that a person is present with a secret intention to assist the principal should assistance be required. Some encouragement or assistance must have been given to the principal either before or at the time of the commission of the crime with the intention of furthering its commission. Presence without more may, however, afford some evidence of aid and encouragement. It is an indictable offence at common law for a person to incite or solicit another to commit an offence. For an incitement to be complete, there must be some form of actual communication with a person whom it is intended to incite, where, however, a communication is sent with a view to incite, but does not reach the intended recipient the sender may be guilty of an attempt to incite. Incitement is complete though the mind of the person incited is unaffected and notwithstanding that person incited intends to inform on the inciter ; but there can be no incitement unless one person seeks to persuade or encourage another Halsbury's Laws of England, Paras 42 to 44.
17. It may be useful to notice some of the Indian decisions on the question of Page 29 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined abetment. Among the early cases of abetment of suicide arose out of unfortunate incidents of Sati, which was common in India, at one time. A person who induced the woman to return to the pyre after she had once retired from it, and immolated herself, was held to have abetted suicide 1863 (1) R.L.P.J. 174. Where a women prepared to commit suicide in the presence of certain persons who followed her to the pyre, stood by her and one of them told the women to say 'Ram Ram' and "She would became sati", the facts were held sufficient to prove the active connivance of these persons and to justify the inference that they had engaged with her in a conspiracy to commit suicide 1871 (3) N.W.P. 316; (1933) A.L.J.R. 7. Where the accused prepared the funeral pyre, placed the victim's husband's body over it, and did not use any force to prevent her from sitting on the pyre and supplied her with ghee which she poured over the pyre were found guilty of abetment of suicide. Where a Hindu women was burnt in the act of becoming sati, those who assisted her in taking off her ornaments, supervised the cutting of her nails and the dying of her feet, prepared the pyre on which she sat herself and put the corpse upon the pyre, Page 30 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined were all held guilty of abetment of suicide. The defence that the abettors were in fact "expecting a miracle and did not anticipate that the pyre would be ignited by human agency was rejected, 1928 (8) Pat.
74. Similarly, where the accused, who were members of a crowd, who had joined the funeral procession from the house of the victim to the cremation ground, and were shouting "Sati Mata Ki Jai" it was held that all those persons, who joined the procession were aiding the widow in becoming sati and were guilty of an offence under Section 306 of the Penal Code, 1958 Cr. L J. 967, 1958 Raj. 143.
18. Some later decisions arising out of other instances of instigation throw further light on the question. In the case of Parimal Chatterjee and others A.l.R 1932 Cal. 760, a Division Bench of the Calcutta High Court observed that the word "instigate" literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. A person may however not only instigate another, but he may co-operate with him and his Co-
operation - may consist of a conjoint
action and that would amount to
abetment. In the case of State of Bihar v. Ranen Nath and other A.I.R. 1958 Patna 259, Page 31 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined a Division Bench of the Patna High Court was construing Section 27 of the Industrial Disputes Act which uses the expressions Instigation and incitement' and observed that the words "should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement"
and it was held that the words seem to convey the meaning "to goad or urge forward or to provoke or encourage the doing of an act." It was further observed that what acts should amount to instigation or incitement within the meaning of that section will depend upon the "particular facts of each case", and that in some circumstances a "throw of a finger" or "a mere turning of the eye' may give rise to an inference of either "incitement or instigation", and yet in others even "strong words, expressly used, may not mean that the person using them was stimulating or suggesting to anyone to do a particular act." The court expressed the view that there must be something "tangible" in evidence to show that the persons responsible for such action were "deliberately trying to stir up other persons to bring about a certain object".Page 32 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024
NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined According to a division bench of the Calcutta High Court, a person abets the doing of a thing when he or she, inter alia. "instigates any person to do that thing." The other modes of abetment, besides instigation, are "conspiracy and intentional aid". The word "instigation" literally means "to goad or urge forward to do an act." "It is something more than co- operation." In the case of Shri Ram and another, 1975 (2) S.C.R. 622, the Supreme Court observed that in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. "Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107". A person may, for example, "invite another casually or for a friendly purpose and that may facilitate the murder of the invitee". But unless the invitation was extended "with intent to facilitate the commission of the murder", the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor "happens to facilitate the commission of the crime".
"Intentional aiding and therefore active complicity is the gist of the offence of Page 33 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined abetment under the third paragraph of Section 107".
19. In case of suicide how the evidence is required to be appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court 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 appears 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. Further the Hon'ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 had an occasion Page 34 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined 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.
20. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in Page 35 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable." "16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
21. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 Page 36 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined and 13 reads thus :
"12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that 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 IPC.
13. In State of W. B. v. Orilal Jaiswal this Court has observed 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 or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to Page 37 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined induce a similarly circumstances 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."
22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence."
23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC 618. the Supreme Court held that "Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be Page 38 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC 371. the deceased committed suicide on 27.7.1998. whereas, the alleged quarrel had taken place on 25.7.1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die.
25. Taking note of various earlier judgments, Page 39 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that "Abetment involves mental process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide."
26. On a close reading of the above provisions of the IPC, and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case under Section 306 IPC, there should be clear mens-rea to commit the offence under this Section and there should be direct or active act by the accused, which led the deceased to commit suicide, that is to say that there must be some evidence of "instigation", "cooperation" or "initial assistance" by the accused to commit suicide by the victim/deceased.
27. In Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrajirao Angre, (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:
"7. The legal position is well settled that Page 40 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
It was a proposition relating to criminal prosecution.
28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that Page 41 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined the High Court was in error in not quashing the proceedings.
29. Accepting the allegations made against the applicants by the prosecution as it is, they do not constitute the offence of abetment. I am conscious of the fact that five persons of one family lost their lives on account of drastic step taken by them for no reason. It is very difficult to understand the mental state of mind of such persons who take an extreme step of putting an end to their life voluntarily by committing suicide."
22. This Court has also taken into consideration the parameters as mentioned by the Hon'ble Supreme Court in case of Bhajan Lal (supra), which read as under, "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the Page 42 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly Page 43 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
23. The Hon'ble Apex Court in case of R.P. Kapur (supra) has summarised some categories of cases where inherent power can and should be exercised to quash the proceedings, which are as under,
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
24. In view of the ratio enunciated by the Hon'ble Apex Court in the aforesaid decisions as well as other decisions, it is required to be noted that whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Criminal Procedure Code to get the FIR quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for Page 44 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024 NEUTRAL CITATION R/CR.MA/4684/2017 JUDGMENT DATED: 18/04/2024 undefined wreaking vengeance then, in such circumstances, the Court owes a duty to look into the FIR with care and a little more closely. The Court while exercising its jurisdiction under Section 482 of the CrPC need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Therefore bare perusal of the contents of the FIR, as stated above, it is found out that there is no specific allegations leveled against applicants and the original accused no.1, against whom the allegations are leveled, has already been acquitted by the competent criminal court. Thus considering the above facts of the case, continuation of the proceedings against the applicants would be futile exercise and no purpose would be served keeping the said proceeding alive. Therefore, the present application deserves to be allowed.
25. In the result, the present application is allowed.
The impugned First Information Report being C.R. No.I-3/2017 registered with Madhavpur Police Station, Porbandar is hereby quashed and set aside. All consequential proceedings pursuant thereto stand terminated. Rule is made absolute. Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 45 of 45 Downloaded on : Tue Apr 23 22:02:56 IST 2024