Gujarat High Court
Chimanlal Khimjibhai Makwana vs State Of Gujarat & on 19 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/2772/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2772 of 2010
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CHIMANLAL KHIMJIBHAI MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1
MR PRAVIN GONDALIYA, ADVOCATE for the Respondent(s) No. 2
MR KL PANDYA, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/08/2015
ORAL ORDER
1. By this application under Section482 of the Code of Criminal Procedure, 1973, the applicantoriginal accused seeks to invoke the inherent powers of this Court for quashing of the F.I.R. being C.R. No.I 11 of 2010 filed before the Ranpur Police Station, Ahmedabad for the offence punishable under Section306 of the I.P.C.
2. It appears that while admitting this petition vide order dated 30.04.2010, the facts of the case have been exhaustively therein. The order, dated 30.04.2010 reads thus:
1. This application under Section 482 of the Code of Criminal Procedure, 1973, is filed to quash and set aside the complaint lodged before the Bagodar Police Station being C.R. No.I11/2010 for the offences punishable under Section 306 of Indian Penal Code.
2. It is the case of the complainantrespondent No.2 herein, that before about 15 years he had rendered services as a delegate in Page 1 of 17 HC-NIC Page 1 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER Dhandhuka Taluka Panchayat and came into contact with one Hasanbhai Bhaijibhai of Ranpur and through him an agricultural land was purchased in consideration of Rs.87,400/ and 19 vighas of land purchased by all people of Harijan community and about 150 members were enrolled. It is further stated that, thereafter, nephew of said Shri Hasanbhai Bhaijibhai filed civil suit against the complainant and the said land became a disputed land. In the year 1998, power of attorney was executed by the complainant in favour of the applicant for various purpose including appearing and managing the litigations with regard to the land. On 20th June, 2001, the Court finally disposed of civil proceedings and appeal from order No.235/2001 also came to be dismissed on 8.10.2001. However, on 2.2.2010, a public notice was published in the newspaper by the complainant declaring that on 4.1.2010, the above power of attorney was cancelled and the applicant had no authority to deal with regard to the land in question as mentioned in the above power of attorney.
2.1. It is further alleged that before three months, members of the group interested in the land in question and represented before the complainant that the applicant power of attorney has not done anything with regard to the disputes pending before various courts since long and, therefore, he has to be removed as a power of attorney and, accordingly public notice was issued to cancel the power of attorney. Therefore, it is alleged that the applicant became furious and demanded Rs. 10 lakhs from the complainant and his son Dalpat (deceased) and threatened of dire consequences. Such threats were administered on the mobile phone belonging to the son of the complainant. The applicant, before 7 days of incident, in an occasion and a common community gathering demanded money and the applicant inflicted injuries upon him and again administered threats. On 18th February, 2010 on and around 10:30 to 11:00 a.m., a phone call was received by Dalpat and had a talk with the applicant who threatened him and demanded Rs.10 lacs and, therefore complainant asked Dalpat to disconnect the phone call and around 12:30 p.m. when Dalpat returned to home, the complainant found him uneasy and under tension. The deceased again went out of the house and returned and started vomiting and upon asking, he replied that the applicant had demanded Rs.10 lacs and threatened him of implicating in a false case. Since it was stated by the son of the complainant that he had consumed poison, ambulance was called and he was taken to Ranpur Government Hospital and for further treatment he was shifted to Paliyad Government Hospital. On the next day, since condition of the son of the complainant worsened, he was advised for further treatment at Ahmedabad. While on the way to Ahmedabad, Dalpat vomited and ultimately died at V.S. Hospital, Ahmedabad in the evening.
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In the backdrop of facts as above, Section 306 is attracted and so mentioned in the F.I.R.
3. Mr. Ashish Dagli, learned advocate for the applicant vehemently contended that considering definition of Section 107 with regard to abatement read with explanation I and II therewith it cannot be said that the applicant had abated in the crime. It is submitted that the allegations levelled in the F.I.R. are general and vague and it begins with incident which took place before three months and power of attorney of the applicant came to be cancelled and, therefore, the applicant continued to administer threat and demanded money from son of the complainant, is unbelievable inasmuch as, at no point of time father and son complained to any authority or even members of their community about alleged harassment and threats by the applicant. It is next contended that power of attorney was executed by the complainant and not by his son and the applicant had never entered into any transaction with the deceased. On the contrary, relationship between the parties was cordial and they were in contact with each other and at different occasions had visited their places. It is further submitted that litigation of civil nature was pending and pursuant to the rights conferred upon the applicant, a power of attorney, no transaction was entered into and, therefore, demand of money is a make belief averment.
3.1. Learned advocate has placed reliance on following decisions of this Court including Hon'ble Apex Court and submitted that even averments and allegations are taken out on their face value, no ingredients of abatement is attracted and, therefore, complaint deserves to be quashed and set aside.
1. Hans Raj v. State of Haryana [(2004) 12 SCC 257]
2. Swamy Prahaladdas v. State of M.P. And Anr. [1995 Supp (3) SCC 438]
3. Randhir Singh and Anr. v. State of Punjab[ (2004) 13 SCC 129]
4. Netai Dutta v. State of W.B. [(2005) 2 SCC 659]
5. Sushil Kumar Sabharwal v. Gurpreet Singh and Ors. [(2002) 5 SCC 377]
6. S.G. Munia & Ors. v. State of Gujarat and Anr. [2002 (3) G.L.H. 417]
7. A.K. Chaudhary & 2 v. The State of Gujarat & 2 [2005 (3) G.L.H. 444]
8. unreported decision in the case of Rajkuar Madhabhai Vegda & 1 v. State of Gujarat & 1 in Criminal Misc. Application No.2726/2008
4. Mr. Pravin Gondaliya, learned advocate for the complainant Page 3 of 17 HC-NIC Page 3 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER vehemently submitted that exercise of powers under Section 482 of the Code of Criminal Procedure, 1973, at the stage when investigation is on and sufficient material is available on the record of the case to frame a charge against the applicant and in view of availability of an alternative remedy before the court concerned, at appropriate stage, is not just and proper, as prayed for. On merit, it is submitted that repeated threats were administered and demand of money was made by the applicant. If the definition of Section 107 of Indian Penal Code is perused, instigation has many connotations and if it is perused in the context of the allegations in the F.I.R. it will certainly attract section 107 of the Code. So according to learned advocate for respondent No.2 the complainant is aged about 82 years and all affairs pertaining to agricultural land were looked into by the deceased son and frequent usage of mobile phone by the applicant will indicate that the deceased was forced and compelled to commit suicide. Learned advocate for the complainant submitted that even anticipatory bail filed by the applicant also came to be withdrawn before this Court and, therefore, when cogent and sufficient material exists and the applicant has not cooperated with the investigation and enraged by cancellation of power of attorney which deprived him of transacting into agricultural land and for his crime of abatement and the facts and circumstances of the case, the notice is to be discharged by refusing the relief prayed for in this application.
4.1. In support of his submissions, learned advocate for the respondent No.2 placed reliance on the decision in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) JT 2009 (10) SC 698 and submitted that to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of any act by the other by "goading" or "urging forward" and therefore, even someone irritates or annoys someone until he or she reacts and then acts, it will be sufficient enough to bring within definition of Section 107 of the Code. Another decision relied on by Mr. Gondaliya is in the case of Didigam Bikshapathi v. State of Andhra Pradesh [2007 (0) GLHELSC40138 and submitted that powers under Section 482 to be exercised with great caution and should not be exercised to stifle a legitimate prosecution.
5. In the above backdrop and rival submissions and considering record of the case and decision relied on by learned advocates appearing for the parties and on perusal of the F.I.R. as a whole, do not reveal any instigation on the part of the applicant. On the contrary power of attorney came to be cancelled atleast 2½ months before the alleged incident. The applicant and the complainant had met each other frequently and they had family relations. That, applicant and complainant and the deceased son have time and again talked to each other and used their mobile phones However, at Page 4 of 17 HC-NIC Page 4 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER this stage one cannot go into the reasons and details about the cause for telephone to each other but at the same time the applicant had threatened to end his life if dispute continues and such an act, prima facie, cannot be said to have instigated son of the complainant who was not executor of power of attorney. Even administering threats for demanding money, by itself, no ingredients of instigation as mentioned in Section 107 of abatement are attracted. There is nothing on the record that effective steps were taken by the complainant of complaining or representing before the authority concerned about behaviour of the applicant. No where such fact was disclosed even before family members or community leaders, where they used to meet frequently. Considering the law laid down by the Apex Court and this Court as per above decisions, I am of the opinion that the applicant herein, prima facie cannot be said to have instigated the deceased Dalpatson of the complainant for committing an offence under Section 306 and therefore, the matter deserves further and detail consideration.
6. Hence, Rule returnable on 5th July, 2010. Mr. Kartik Pandya, learned APP, waives service of rule on behalf of respondent No.1 and Mr. Pravin Gondaliya, learned advocate for respondent No.2. Till then, further proceedings of the impugned complaint shall remain stayed.
3. It also appears that on 09.03.2012, the adinterim relief granted earlier was modified to the extent, permitting the Investigating Officer to investigate the case and submit the report before this Court. However, the Investigating Officer was directed that he shall not file the charge sheet without prior permission of this Court.
4. Mr. Dagli, the learned advocate appearing on behalf of the applicant submitted that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute the offence under Section306 of the IPC are spelt out. He submitted that the prosecution for the offence punishable under Section306 is nothing but an abuse of the process of law.
5. On the other hand, this application has been vehemently opposed by Mr. Pravin Gondaliya, the learned advocate appearing on behalf of Page 5 of 17 HC-NIC Page 5 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER the first informant. He submitted that the materials on record do disclose a primafacie case for prosecuting the applicant and putting him to trial for the offence under Section306 of the IPC. He submitted that the necessary ingredients to constitute the offence under Section306 of the IPC are spelt out. Mr. Gondaliya placing reliance on the Section107 of the IPC submitted that the case is one of instigating the deceased to take an extreme step of committing suicide.
6. I had the occasion to consider the entire law on the subject of abetment punishable under Section306 of the IPC in the case of 'Lalitbhai Vikramchand Parekh Vs. State of Gujarat & Anr.', Criminal Misc. Application No.16032 of 2014, decided on 10.04.2015. I may quote the observations made therein.
"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 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 SecondlyEngages 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 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 Page 6 of 17 HC-NIC Page 6 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER 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 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 countenancenow 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. 78R. v. Coney, J., "To constitute an aider or 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 interferenceor he may encourage intentionally by expressions, Page 7 of 17 HC-NIC Page 7 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER 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 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 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 physicianand not the innocent nurseis 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 carowner sitting beside the chauffeur who kills some one by overfast driving, or a passenger on a clandestine joyriding 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 prizefight 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 Page 8 of 17 HC-NIC Page 8 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER perpetrated. "To be guilty of aiding and abetting, a person must either render 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 prizefight 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, 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 "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.
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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 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 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 Page 10 of 17 HC-NIC Page 10 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER upon the pyre, 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 Cooperation 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, 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". 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 cooperation." 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 Page 11 of 17 HC-NIC Page 11 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER 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 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 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 mind that in cases of alleged abetment of suicide there must be proof of direct or Page 12 of 17 HC-NIC Page 12 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER 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 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 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:
Page 13 of 17HC-NIC Page 13 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER "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 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, 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 mensrea 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 Page 14 of 17 HC-NIC Page 14 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER "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 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 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.
30. According to the World Federation for Mental Health (WFMH), a number of countries have established national suicide prevention plans or strategies. Their principles and action steps represent good sources for developing specific policy recommendations to present to governmental and legislative leaders. Common elements of these plans and strategies include:
Campaigns to increase public awareness of suicide as a preventable problem, to develop broad based support for Page 15 of 17 HC-NIC Page 15 of 17 Created On Wed Aug 26 00:17:00 IST 2015 R/CR.MA/2772/2010 ORDER prevention efforts, and to reduce stigma;
Community development to support creation and implementation of suicide prevention programs;
Improved access to services to suicidal people and their loved ones, and improved service delivery efforts through development of guidelines and linkages;
Media education to improve reporting and portrayals of suicide in the media;
Training for caregivers to improve recognition of atrisk behaviour and delivery of effective treatments;
Incorporation of licensing standards for professional caregivers;
Development and promotion of effective clinical and professional practices;
Means restriction initiatives to reduce access to lethal means and methods of self harm;
Research and evaluation to promote and support research, improve surveillance systems, and evaluate the effectiveness of new or existing suicide prevention interventions.
31. In this view of the matter, I am of the opinion that there is absolutely no material on record, sufficient for continuing the criminal prosecution against the applicants. The factual position clearly shows that the criminal proceedings pending against the applicants is nothing, but a sheer abuse of the process of law, which should be quashed by exercising powers under Section 482 of the Criminal Procedure Code. Mere vague allegations of harassment by themselves would not amount to abetement of the offence of commission of suicide. Something more is required under Section 107 of the IPC. These requisite ingredients are missing in this case.
32. Commission of suicide in the State is at rampage. Everyday, cases are reported. Sometimes, it could be a student or an estranged wife or a frustrated or mentally disturbed husband or it could be a terminally ill person fedup with the ailment etc. Life is precious and should not be allowed to be lost in this manner. The State owes an obligation to see that its subjects do not take the extreme step of committing suicide for any reason. In such circumstances, the State Government should also seriously consider evolving some action plan or strategies as referred to above."
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R/CR.MA/2772/2010 ORDER
7. Even if I believe as true what has been alleged by the first informant i.e. the father of the deceased, in my view, it could not be said that the applicantaccused ever intended the consequences of the act. The dispute was one relating to the cancellation of a Power of the Attorney executed by the father of the deceased in favour of the applicantaccused. It appears that on account of such dispute, the relations between the family of the deceased and the applicant got strained. In such circumstances, if the deceased committed suicide, then it is very difficult to say that the applicant herein abetted such suicide within the meaning of Section107 of the IPC punishable under Section 306 of the IPC. The most important ingredient to constitute the offence under Section306 i.e. the mensrea is lacking in the present case.
8. In the over all view of the matter, I am convinced that no case is made out for prosecuting the applicantaccused.
9. In the result, this application is allowed. The F.I.R. being C.R. No.I11 of 2010 filed before the Ranpur Police Station, Ahmedabad, is hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated.
Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 17 of 17 HC-NIC Page 17 of 17 Created On Wed Aug 26 00:17:00 IST 2015