Chattisgarh High Court
Sushil Agrawal vs State Of Chhattisgarh on 13 March, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No.150 of 2024
• Sushil Agrawal S/o Lt. Shrikishan Agrawal Aged About 56
Years R/o 97, Jal Vihar Colony, Civil Lines, Raipur, P.S. Civil
Lines, Raipur, Tah. And Distt. Raipur, C.G.
---- Petitioner
Versus
1. State of Chhattisgarh Through P.S. Pithora, Tah. Pithora, Distt.
Mahasamund, C.G.
2. Akash Agrawal S/o Madan Lal Agrawal Aged About 33 Years
R/o Pithora, P.S. Pithora, Distt. Mahasamund, C.G.
---- Respondents
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For Applicant : Mr. Rajkamal Singh, Advocate along with Mr. Suryapratap Yudhveer Singh, Advocate For Respondent No.1 : Mr. Pramod Shrivastava, Deputy Govt Advocate For Respondent No.2 : Mr. Priyank Rathi, Advocate
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SB: Hon'ble Justice Mr. Parth Prateem Sahu Order on Board 13.03.2024
1. Applicant has preferred this criminal revision under Section 397 r/w 401 of the Criminal Procedure Code, 1973 (for short 'CrPC') feeling aggrieved by the order dated 10.10.2023 passed in S.T. No.41/2023 by which learned 2 nd Additional Sessions Judge, Mahasamund has framed charge under Section 306/34 of the Indian Penal Code against applicant.
2. Facts leading to filing of present criminal revision are that on 27.7.2019 Police received an intimation regarding unnatural death of deceased Shyam Sundar Agrawal, based on which police registered Merg No.40/19 under Section 174 of CrPC 2 and started inquiry. In the course of inquiry, a suicide note left behind by deceased was seized, in which allegations were made against present applicant and co-accused Nitesh Singhania. In the suicidal note the deceased has held the accused persons responsible for his death as they were harassing him in connection with money transaction. On the basis of aforesaid suicidal note, Police registered offence under Section 306/34 of IPC against applicant and co-accused Nitesh Singhania. Body of deceased was sent for post-mortem examination and as per post-mortem report, cause of death was cardio respiratory arrest due to asphyxia (due to hanging). During investigation, said suicidal note was sent to the handwriting expert. After completion of investigation, charge sheet against accused persons under Section 306/34 of IPC is filed before the competent Court. The Court below, by impugned order dated 10.10.2023, came to conclusion that prima facie charge under Section 306/34 of IPC is made out against accused persons including applicant and accordingly framed charge against them. Feeling aggrieved by which, the applicant has preferred this revision.
3. Learned counsel for applicant submits that applicant along with co-accused person are implicated in the crime in question registered by police on the basis of suicidal note seized from the place of incident. Even if the entire material available in charge sheet filed by police are taken as it is, the offence under Section 306/34 of IPC would not be attracted against 3 applicant because there is no allegation of instigation or abetment against the applicant which led the deceased to commit suicide. He submits that in the suicidal note, there is only allegation against applicant that applicant had to pay Rs.81 Lakhs to deceased, which he is not paying to him, and hence, it is clear that the dispute between the deceased and applicant, if any, would be of civil nature. Hence the order impugned passed by the Court below framing charge under Section 306/34 of IPC is per se illegal and bad. He also submits that on similar set of allegations, co-accused Nitesh Singhania has been discharged vide order dated 22.1.2024 (Annexure A-4) in Criminal Revision No.1168/2023. In support of his submission, he places reliance upon the decisions in the cases of Sanju @ Sanjay Singh Sengar vs. State of MP, reported in (2002) 5 SCC 371; Madan Mohan Singh vs. State of Gujarat, (2010) 8 SCC 628; VP Singh v. State of Punjab, 2022 SCC Online SC 1999; Mahendra Singh & another vs. State of MP, 1995 Supp (3) SCC 731, Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618.
4. Per contra, learned counsel appearing for the State opposing submissions of learned counsel for applicant, would submit that the deceased committed suicide on 27.7.2019 and during merg enquiry, police seized suicidal note, which was in the handwriting of deceased, wherein there is allegation that applicant was not making payment of huge amount to deceased towards the construction work done by deceased for 4 the applicant, and the said conduct on the part of applicant not only caused mental agony and harassment to deceased but also prompted him to commit suicide. Thus, prima facie ingredients of Section 306 of IPC is made out against applicant and therefore, there is no error in the order impugned passed by the Court below framing charge under Section 306, 34 of IPC against applicant. In support of his contention, he read out the contents of suicidal note.
5. Learned counsel for respondent No.2 Objector adopted the arguments advanced on behalf of respondent No.1, however he added that the suicidal note and the statements of witnesses recorded by police, would clearly indicate that there was continuous torture and harassment being made at the hands of the applicant to the deceased and when things became unbearable, the deceased was left with no other option but to commit suicide. Thus, there are sufficient material in the charge sheet against the applicant to have instigated the deceased to commit suicide. Even otherwise, it is well settled that at the stage of framing of charge it is not to be looked into whether conclusion of trial will lead to conviction of accused or not but it to be only seen whether prima facie material is available in the charge sheet or not to frame the charge against an accused. Therefore, the order impguned passed by the trial Court does not warrant any interference in exercise of revisional jurisdiction.
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6. I have heard learned counsel for both sides and perused the record of the case as well as suicide note left by the deceased. I have also perused impugned order directing framing of charge against applicant.
7. It is not in dispute that deceased committed suicide on 27.7.2019 by hanging himself, leaving behind a suicide note. Perusal of the suicide note would reveal that the deceased had to receive Rs.81 Lakhs from applicant and there was a bill amounting to Rs.40 Lakhs payable by applicant, but the applicant is not making said payment. Thereafter, the suicide note contained allegations against co-accused Nitesh Singhania and at the last, it is written that applicant and said Nitesh Singhania are responsible for his death. Based on this suicide note, FIR was registered against applicant and co- accused.
8. From the statement of Sharda Agrawal, wife of deceased, recorded under Section 161 CrPC, it is appearing that she is A-Class contractor; deceased husband being her attorney was looking after the construction work, applicant gave contract of construction of Kishanpur to Baldidih road to deceased, which he completed, but despite repeated requests applicant had only made half payment of the work done and finally, he refused to make payment. It is further appearing from the statement of wife of deceased that co-accused Nitesh Singhania is owner of a crusher, her husband used to purchase ballast stone from applicant and despite making 6 payment of huge amount, applicant neither supplied ballast stone nor returned the money, on the contrary, he had threatened for life to her husband. Feeling mentally and physically harassed by the act of accused persons of not returning his money, her husband used to remain disturbed and perturbed. On 27.7.2019 in the morning he committed suicide by hanging himself from the shed of terrace.
9. Section 306 of IPC provides punishment for 'abetment of suicide' and Section 107 of IPC deals with as what amounts to abetment. Section 107 the same is extracted below for ready reference:-
"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 lakes 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."
10. From the semantics of Section 107 of IPC it is manifest that the essence of abetment lies in instigating a person to do a thing or intentional doing of that thing by an act or illegal omission or engages with one or more person or persons in any conspiracy for doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy. 7
11. In the case of Ramesh Kumar v. State of Chhattisgarh, reported in (2001) 9 SCC 618 a three-Judges Bench of Hon'ble Supreme Court, has observed 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."
12. In case of State of West Bengal vs. Orilal Jaiswal, reported in (1994) 1 SCC 73, the Hon'ble Supreme Court while dealing with acquittal of accused from the charge under Section 306 of IPC, has cautioned as under:-
"17. ...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 8 charged of abetting the offence of suicide should be found guilty."
13. In Randhir Singh & ors vs. State of Punjab, reported in (2004) 13 SCC 129 it was held thus:
"12.Abetment involves a mental process of instigating 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 of IPC."
14. In case of Amlendu Pal @ Jhantu vs. State of West Bengal, reported in (2010) 1 SCC 707, the Hon'ble Supreme Court observed as under:-
"12.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 indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which let or compelled the person to commit suicide, 9 conviction in terms of Section 306 IPC is not sustainable.''
15. In Madan Mohan Singh vs. State of Gujarat & ors, reported in (2010) 8 SCC 628, the Hon'ble Supreme Court observed thus:-
"12.In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC."
16. In case of M. Mohan vs. State represented by the Deputy Superintendent of Police, reported in (2011) 3 SCC 626, the Hon'ble Supreme Court observed thus:-
"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."
17. In case of State of Kerala vs. S. Unnikrishnan Nair, reported in 2015 AIR SCW 4814, the Hon'ble Supreme Court has observed thus:-
"13.As we find from the narration of facts and the material brought on record in the case at hand, it is 10 the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we 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.
18.Coming to the case at hand, as we have stated earlier, the suicide note really does not state about any continuous conduct of harassment and, in any case, the facts and circumstances are quite different. In such a situation, we are disposed to think that the High Court is justified in quashing the proceeding, for it is an accepted position in law that where no prima facie case is made out against the accused, then the High Court is obliged in law to exercise the jurisdiction under Section 482 of the Code and quash the proceedings. [See V.P. Shrivastava v. Indian Explosives Limited and others, (2010) 10 SCC 361]"
18. From the above decisions, it is quite clear that so as to bring the case within the ambit of 'abetment' under Section 107 IPC, 11 there has to be material/evidence with regard to the instigation, conspiracy or intentional aid on the part of accused. For the purpose of framing the charge under Section 306 of IPC also, there has to be material with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide. It is also to be borne in mind that merely on the allegation of harassment/torture without there 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, framing charge or conviction under Section 306 of IPC is not sustainable.
19. In the present case, the contents of FIR and suicidal note left behind by deceased indicate that the deceased committed suicide being fed-up by act of applicant of not making payment of his legitimate money. Whether this allegation fit in the ingredients of Section 107 of IPC. The answer of this question is in negative for the reason that in the suicidal note there is no allegation to the effect that applicant had instigated the deceased to do a particular thing or he intentionally aided the deceased to commit suicide. Further, there is no allegation of conspiracy in FIR or suicidal note nor it indicates that there was continuous harassment or torture by the applicant or he intended that deceased should commit suicide or instigated him to commit suicide. The facts mentioned in the suicide note are not sufficient to draw a presumption that the deceased was abetted by applicant for commission of suicide. Furthermore, 12 the statement of wife of the deceased recorded under Section 161 Cr.PC did not so disclose, that the applicant instigated or intentionally aided the commission of suicide by the deceased by any illegal act or omission. The act of non-payment of money, individually or collectively, does not fall within the purview of abetment. Therefore, even presuming that deceased was upset on account of non-payment of money by applicant of the construction work of road carried out by him, then also it does not amount to an "instigation", as defined under Section 107 of IPC, on the part of applicant. If the applicant has refused to make payment of amount payable to deceased towards the construction work of road done by him for and on behalf of applicant, he could have taken recourse to the law. Instead of taking this legal and legitimate action, the deceased adopted an escapist course of committing suicide. It is settled law that if the instigation for commission of suicide is not established by the prosecution then certainly the charge under Section 306 of IPC cannot be framed.
20. In case of Amit Kapoor vs. Ramesh Chander, reported in (2012) 9 SCC 460, Hon'ble Supreme Court has laid down the principles to be borne in mind for proper exercise of jurisdiction under Section 397 or 482 CrPC, as the case may be, particularly in the context of quashing of charge. The principles in Amit Kapoor's case (supra) were recently quoted with approval in case of Manendra Prasad Tiwari v. Amit Kumar Tiwari & another, reported in 2022 SCC Online SC 1057.13
One of the principles on which revisional jurisdiction can be exercised is that if the allegations are patently so 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. Relevant principles culled out by Hon'ble Supreme Court in aforementioned decision read thus:-
"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.
xxxxx xxxxx xxxxx 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.
xxxxx xxxxx xxxxx 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.
xxxxx xxxxx xxxxx 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 the 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."14
21. Keeping in mind the mandates of the Hon'ble Apex Court dealing with the provisions contained in Section 306 of IPC and considering the entire material available against the applicant in charge-sheet, which does not prima facie disclose any abetment on the part of the applicant to the deceased to commit suicide, in the considered opinion of this Court, the order impugned framing charge against applicant under Section 306, 34 of IPC is not sustainable in law.
22. In the light of the principles of law laid down in the case of Amit Kapoor (Supra), looking to the material available in the charge sheet based on which trial Court framed charge under Section 306/34 IPC and further considering that co-accused has already been discharged from the charge under Section 306,34 IPC on the same set of allegations, this criminal revision is hereby allowed. Impugned order dated 10.10.2023 passed by learned 2nd Additional Sessions Judge, Mahasamund in ST No.41/2023, so far as it relates to present applicant, is hereby set aside and he is discharged from the charge under Section 306, 34 of IPC.
23. Certified copy as per rules.
Sd/-
(Parth Prateem Sahu) Judge roshan/-