Himachal Pradesh High Court
Shyam Lal Negi vs State Of Himachal Pradesh on 24 July, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No. 324 of 2016.
Judgment reserved on: 18.7.2017.
Date of decision: 24th July , 2017.
Shyam Lal Negi .......Petitioner.
Versus
State of Himachal Pradesh. ......Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr. R.K. Bawa, Senior Advocate, with Mr. Ajay Sharma, Advocate.
For the Respondent : Mr. Neeraj K. Sharma, Deputy Advocate General.
Tarlok Singh Chauhan, Judge This criminal revision is directed against the order dated 29.8.2016 whereby charge under Section 306 IPC has been framed against the petitioner by learned Additional Sessions Judge-I, Shimla in Case No. 21-2 of 2016 with further prayer for quashing all consequential proceedings thereto.
2. The facts necessary for disposal of this revision may be summarized as under:
Deceased Nitin Gajanan Gotmore son of Sh. Gajanan Narayan Gotmore resident of village and post office, Saundka, Tehsil Sanhara, District Aakola, Maharashtra-444 103 joined the 28th Regiment of ITBP as a Sepoy on 11.5.2013. After his training the Whether the reporters of the local papers may be allowed to see the Judgment?yes ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 2 deceased was posted in 50th Regiment ITBP in Ramgarh, Haryana.
Thereafter on 26.3.2015, the deceased was attached with ITBP, SHQ, .
Shimla. During his service in ITBP SHQ, Shimla, deceased rendered services in various capacities and from 24.7.2015 to 20.8.2015 he was posted as Runner and thereafter from 20.8.2015 he was on guard duty.
On the night of 16.9.2015 deceased was on Sentry duty at Gate No. 2 of ITBP SHQ, Shimla from 9.45 p.m. to 12.30 am alongwith Kulbhushan son of Sh. Sampuran Singh, resident of Tehsil Pooh, District Kinnaur, H.P. At about 12.10 am in the night, the deceased directed aforesaid Kulbhushan to leave rifle Insas No. 166 which was allotted to Sentry Kulbhushan on 16.9.2015 with him and wake up the sentry from the barracks for the next shift of sentry duty. The deceased assured Kulbhushan that he will deposit the rifle and ammunition on behalf of Kulbhushan. As Kulbhushan left for the barracks to wake up the sentry having next shift of duty, the deceased loaded the aforesaid rifle and shot himself dead in the sentry chamber. The matter was immediately reported to the police and FIR No. 235 of 2015 dated 17.9.2015 was registered and investigation was conducted. During the course of investigation, site plan of the occurrence was prepared and autopsy of the dead body of deceased was conducted. Photographs, empty cartridges were taken into possession and statements of witnesses were recorded. After completion of the investigation, police prepared the challan and presented in the Court. It is alleged that during the course of investigation a suicide note has been recovered and the said suicide note appears to be in the handwriting and signatures of the deceased. It is further alleged that as per suicide note, the deceased was harassed by Deputy Commandant ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 3 (Engineering). Thereafter, the police filed final report under Section 173 Cr.P.C.
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3. Mr. R.K. Bawa, learned Senior Counsel, assisted by Mr. Ajay Sharma, Advocate, learned counsel for the petitioner has vehemently argued that even if the allegations made against the petitioner are taken at their face value and presumed to be true, his act and conduct would not fall under the ambit of abetment of suicide.
4. On the other hand, Mr. Neeraj K. Sharma, learned Deputy Advocate General would contend that it is too pre-mature stage so as to call for any interference, particularly when the scope of revisional jurisdiction of this Court is very limited and cannot, therefore, be exercised in a routine manner.
5. It is a trite that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients, constituting the alleged offence of offences. For this limited purpose, the Court may sift the evidence.
6. Framing of charges is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 4 there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The .
satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence is an approach which is impermissible in terms of Section 228 of the Code.
7. What would be the power of this Court in exercise of its revisional jurisdiction in such like cases has been succinctly laid down by the Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another (2012) 9 SCC 460 wherein it was observed:
"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.
14. Right from the case of State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [(1982) 1 SCC 561], which was reiterated with approval in the case of State of Haryana & Ors. v. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335], the courts have stated the principle that:
(Swapan Kumar case, SCC p.577, para 21) ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 5 "21..... if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing .
the investigation on the basis of the information as laid or received."
It is further stated that (Swapan Kumar case, SCC p. 597, para 65) "65.....The legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to have been committed; if, however, the materials do not disclose an offence, no investigation should normally be permitted."
Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed in order to collect materials for proving the offence.
15. In Bhajan Lal's case (supra), the Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of an FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly 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. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 6 genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer .
an arbitrary jurisdiction on the Court to act according to its whims or caprice.
16 The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.
17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 7 or suspicion of the same would not be a sufficient ground for interference in such cases.
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27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :
27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 8
27.6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and .
prosecute the offender.
27.7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 927.14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well .
within its jurisdiction to frame a charge.
27.15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s.
Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors.
[AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v.
Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
27.16.) These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."
::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 108. Section 306 of IPC, reads thus:
"306. Abetment of suicide.--If any person commits suicide, .
whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9. Section 107 of IPC reads thus:
"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 act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
10. A plain reading of the aforesaid provisions reveals that to justify the framing of charges under Section 306 IPC, the following ingredients must be established:
(i) death due to suicide ;
(ii) accused abets the commission of suicide.
11. Word 'suicide' is not defined in Indian Penal Code.
However, meaning and import thereof was considered by the Hon'ble Supreme Court in Gangula Mohan Reddy vs. State of Andhra Pradesh (2010) 1 SCC 750 wherein the Hon'ble Supreme Court observed that word 'suicide' is not defined in the Indian Penal Code.
However, its meaning and import is well known. The word 'sui' means ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 11 'self' and 'cide' means 'killing'. In other words, the act must have been so intended to push the deceased in a situation that the deceased is .
driven to commit suicide. The Hon'ble Supreme Court in para 17 held as under:
"17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
12. What is abetment, was considered by the Hon'ble Supreme Court in S.S. Chheena vs. Vijay Kumar Mahajan and another (2010) 12 SCC 190 and elaborated the meaning of 'abetment' in para 25 of the judgment as under:
" 25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 12 individual differs from the other. Different people behave differently in the same situation".
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13. What is instigation, was considered by the Hon'ble Supreme Court in Ramesh Kumar vs. State of Chattisgarh, (2001) 9 SCC 618, and defined the meaning of instigation in para 20 of its report, which reads thus:
"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 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."
14. In Sanju alias Sanjay Singh Sengar vs. State of M.P. (2002) 5 SCC 371, the Hon'ble Supreme Court gave interpretation to the word 'abetment' and 'instigation' in the following manner:
"6. Section 197 I.P.C defines abetment to mean that a person abets the doing of a thing if he firstly, 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.
9. In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under: (SCC p.731, para1) ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 13 "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused .
me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."
10. This Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
11. In Ramesh Kumar V. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: (SCC p.620) "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and 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 for abetting the offence of suicide should be found guilty."
12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 14 him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal .
and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."
15. In Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605, the Hon'ble Supreme Court observed that there should be intention to provoke, incite or encourage the doing of an act by the latter. 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. It is apt to reproduce paras 16 and 17 which read thus:
"Speaking for the three-Judge Bench, in Ramesh Kumar case,, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 15 the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation"
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must necessarily and specifically be suggestive of the consequence.
Yet a reasonable certainty to incite the consequence must be (2001) 9 SCC 618 capable of being spelt out. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (See: Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictionary - 7th Edition)."
16. In Praveen Pradhan vs. State of Uttaranchal and another (2012) 9 SCC 734, it is held by the Hon'ble Supreme Court that offence of abetment by instigation depends upon intention of person who abets and not upon act which is done by person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. A reasonable certainty to incite the consequences must be capable of being spelt out. A continued course of conduct which creates such circumstances that deceased was left with no other option but to commit suicide would satisfy the ingredients of instigation to commit suicide or abetment of suicide. It is apt to reproduce paras 16 to 18 of the judgment as under:
"16. This Court in Ramesh Kumar v. State of Chhattisgarh, while dealing with a similar situation observed that what constitutes 'instigation' must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 16 conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.
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17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, (2009) 1 SCC 554.)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C.".
17. Similar issue recently came up for consideration before the Hon'ble Supreme Court in State of Kerala and others vs. S. Unnikrishnan Nair and others AIR 2015 SC 3351 and it was observed in paragraphs 9, 11, 12, 13 and 17 as under:
"9. Mr. Prashant Bhushan, learned counsel appearing for the respondent Nos.1 and 2, per contra, would contend that the High Court has justifiably quashed the investigation, for Haridath, the deceased, was holding a superior rank and there is nothing to suggest that the respondents had instigated him or done any activity that had left the deceased with no option but to commit suicide. He has placed reliance upon Netai Dutta vs. State of West Bengal, (2005) 2 SCC 659 and M. Mohan vs. State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 17
11. The aforesaid provision was interpreted in Kishori Lal v. State of M.P[4] by a two-Judge Bench and the discussion therein is to the .
following effect:-
"Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The r abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
12. In Analendu Pal Alis Jhantu v. State of West Bengal (2010) 1 SCC 707 dealing with expression of abetment the Court observed:-
"The expression "abetment" has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause Thirdly of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC."
13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 18 have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents.
.
The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate.
17. We have quoted in extenso from the said judgment and we have no hesitation in stating that the suicide note therein was quite different, and the Court did think it appropriate to quash the proceedings because of the tenor and nature of the suicide note. Thus, the said decision is distinguishable regard being had to the factual score exposited therein."
18. Thus, what can be taken to be settled is that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. When the allegations of abetment are based on the suicide note and when no other instance as regard mental cruelty are stated in the FIR, the Court is to find from the contents of the suicide note whether there has been any abetment from the accused leading to commission of suicide by the victim.
19. Apart from the suicide note, learned Deputy Advocate General is not in a position to point out any other material which may point out to the complicity /involvement of the petitioner.
20. Now, adverting to the suicide note, the same reads as under:
"esa Jh th- Mh- furhu ;s fy[krk gwWa dh eq>s DC ENG us cgqr ijs'kku fd;k esa vius vki dks xksyh ekj jgk gwsW vkSj rwe DC ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 19 ENG dks dHkh ekQ er djuk ;s esa pkgrk gwaWA rqEgkjk furhu xksrekjs sd/-"
.
21. On examining the facts of the present case as they are, it appears that the petitioner never goaded or urged forward, provoked, incited or urged or encouraged or even compelled the deceased to commit suicide. It has come on record that the deceased had worked under the petitioner till 19/20.8.2015 and thereafter deputed for other duties which were not even under the petitioner. He remained on guard duty uptil the date of his death which took place between 16/17.9.2015 when the deceased shot himself with his service rifle. The record establishes that the petitioner was removed from the duty as he happened to be teasing one girl who happened to be staying in the premises where her father, who had retired from ITBP had been provided accommodation. Admittedly, the deceased worked with the petitioner only till 19/20.8.2015 and thereafter was deputed for other duties which were not even under the administrative or other control of the petitioner and it is ultimately on 16/17.9.2015 that he committed suicide i.e. after four weeks from the date he last worked under the petitioner.
22. There is no close and proximate link of the suicide of the deceased after his having been relieved and assigned other duties by the petitioner which was not even under his control. The link between the cause (threat, instigation, conspiracy or assisting/aiding etc.) and the suicide ought to be live and strong enough to persuade a man of ordinary prudence to be prima facie satisfied that in all probability the incident of suicide can be the outcome of threat, instigation, conspiracy or assistance/aiding etc. extended by the petitioner. It is further ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 20 necessary that the incident of said cause and that of the suicide should be in close proximity of time. Long time gap between the two, renders .
the all essential link, weak.
23. The present one is not a case where the petitioner had by his acts and conduct 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.
24. As held by the Hon'ble Supreme Court in M. Mohan vs. State Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 there must be allegations to the effect that the accused had either instigated the deceased in somewhere to commit suicide or aid, engage with someone in any conspiracy to do so or that the accused somewhere aid any act or illegal omission to cause the said suicide. If the transfer of the deceased was made by the superior officer i.e. the petitioner herein, when it came to his notice that the deceased had been teasing a girl, it will be preposterous to term the same as abetment of suicide as it would become almost impossible for superior officer to discharge the duties as senior employees. There is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the petitioner. There is no proximity either.
25. It needs no reiteration that the Courts have to be extremely careful as the main person is not available for cross-examination by the petitioner/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the petitioner to face the trial. In view of the aforesaid, ::: Downloaded on - 25/07/2017 23:58:27 :::HCHP 21 the petitioner cannot be held responsible for abetment of suicide by the deceased because ingredients of Section 107 IPC are missing.
.
26. In view of the aforesaid analysis, this Court is of the considered view that the essential ingredients of abetment are absent in the instant case so as to constitute an offence under Section 306 IPC. Therefore, the learned Additional Sessions Judge-1, Shimla has failed to exercise jurisdiction in accordance with law. In these circumstances, the petitioner is entitled to be discharged of the offence under Section 306 IPC.
27. Accordingly, the revision is allowed and the impugned order dated 29.8.2016 passed by learned Additional Sessions Judge-1, Shimla in case No. 21-2 of 2016 framing the charge against the petitioner for commission of offence under Section 306 IPC is set-aside and the petitioner is discharged. Pending application(s), if any, stands disposed of.
24th July, 2017. (Tarlok Singh Chauhan)
(GR) Judge.
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