Jharkhand High Court
Pradip Chudiwala @ Pradeep Churiwala vs The State Of Jharkhand on 14 June, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1633 of 2022
1. Pradip Chudiwala @ Pradeep Churiwala, aged about 62 years, son of late Ram
Pratap Chudiwala
2. Kusum Chudiwala @ Kusum Churiwala, aged about 60 years, wife of Pradip
Chudiwala @ Pradeep Churiwala
3. Piyush Chudiwala @ Piyush Churiwala, aged about 29 years, son of Pradip
Chudiwala @ Pradeep Churiwala
4. Varsha Chudiwala @ Barsha Agarwal, aged about 32 years, wife of late Rahul
Agarwal and daughter of Pradip Chudiwala @ Pradeep Churiwala
All are resident of B-33, IVY Lane, Ashiana Garden, Sonari, P.O. and P.S. Sonari,
Town Jamshedpur, District-East Singhbhum
5. Megha Agarwal @ Megha Churiwala, aged about 35 years, wife of Aarush
Dagar and daughter of Pradip Chudiwala @ Pradeep Churiwala, resident of
Alipore (Old), Kolkata, P.O. and P.S. Kolkata, District-Kolkata, State West Bengal
...... Petitioner
Versus
1.The State of Jharkhand
2. Ankit Agarwal, son of Durga Prasad Agarwal, resident of BB-14, Rukmini KUnj
Civil, Township, P.O. and P.S. Sundargarh, District-Rourkela, State Odihsa.
...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Nishant Roy, Advocate For the State : Mr. Manoj Kumar, G.A.-III Mr. Bhola Nath Ojha, A.P.P. For the O.P. No. 2 : Mr. Saurabh Shekhar, Advocate Mr. Anurag Kumar, Advocate 3/Dated: 14/06/2022 Heard Mr. R.S. Mazumdar, learned senior counsel for the petitioners, Mr. Manoj Kumar, learned counsel for the State and Mr. Saurabh Shekhar, learned counsel for the O.P. No. 2.
2. The present petition has been filed for quashing of entire criminal proceedings including the First Information Report in connection with Bishtupur P.S. Case No. 93 of 2022 registered for the offence under sections 306/384/120-B/34 of the Indian Penal Code, pending in the Court of learned Chief Judicial Magistrate, Jamshedpur.
3. Mr. Ankit Agarwal has lodged the First Information Report alleging therein that on 05.05.2022 his brother namely, Rahul Agarwal died by committing suicide from the rooftop of capital DD Bar opposite Ram Mandir, Bistupur due to mental torture caused by lodging of a false F.I.R by his in-laws including his wife. It is further alleged that on 05.05.2022 at about 2:21 P.M. the informant received 2 information through a Video sent by his deceased brother Rahul Agarwal in which he narrated that due to continuous mental torture and public defamation he is going to commit suicide. It is further alleged that after receiving the said information from the concerned O.C., Sonari P.S., Jamshedpur, he and his family members reached Jamshedpur at about 10 P.M. and instituted this F.I.R. against all in-laws of his deceased brother including these petitioners. It is further alleged that on 16.02.2022 a false F.I.R. was registered in Sonari P.S. vide Sonari P.S. Case No. 28 of 2022 by the accused Varsha Agarwal, wife of the deceased as per the direction of her father Pradip Chudiwala, her mother Kusum Chudiwala and brother Piyush Chudiwala against the deceased and his family members. It is further alleged that all the accused persons including the deceased brother of the informant preferred an application for grant of anticipatory bail before the learned Principal District & Sessions Judge, Jamshedpur bearing A.B.P. No. 375 of 2022 and 413 of 2022 and the court has been pleased to allow the bail in A.B.P. No. 375 of 2022 but was pleased to reject the A.B.P. No. 413 of 2022 which was preferred by the deceased namely, Rahul Agarwal vide order dated 12.04.2022. It is further alleged that after rejection of the said bail application of the deceased Rahul Agarwal all the accused persons demanded a sum of Rs. 5 crores from the deceased and his family members and when it was refused by them the informant filed an application for issuance of process under section 82 Cr.P.C which was refused by the learned court and in the meantime the Investigating Officer of the case raided the house of the deceased for execution of NBW on 08.04.2022 and later on filed an application by the Investigating Officer on 12.04.2022 before the learned lower court for the issuance of process under section 82 of Cr.P.C. It is further alleged that deceased Rahul Agarwal before committing suicide recorded a video message in his mobile phone for his family member and well wishers to inform that he is committing suicide as he is not able to deal with the mental and emotional torture as well as defamation caused by the accused persons including petitioners. It is further alleged that even after repeated request made by the deceased Rahul Agarwal to accused Megha Chudiwala & Piyush Chudiwala to let to speak to his children and allow to meet his children several times but it was refused 3 by them. Hence, the present case has been registered.
4. Mr. R.S. Mazumadar, learned senior counsel for the petitioners submits that it is an admitted case of prosecution that petitioner no. 4. Namely, Varsa Chudiwala @ Barsha Agarwal earlier filed a case being Sonari P.S. Case No. 28 of 2022 for the offence under sections 498A, 323, 504 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act against the deceased brother of the informant namely, Rahul Agarwal and his family members including father of the informant namely, Durga Prasad Agarwal and presently the said matter is under investigation. He further submits that the bail of the deceased brother of the informant was rejected vide order dated 12.04.2022 and process under section 82 Cr.P.C. has been issued. In the meantime the deceased brother of the informant committed suicide. Mr. Mazumdar, learned senior counsel for the petitioners further elaborated his argument by way of submitting that entire F.I.R. is based on the allegation that deceased brother of the informant was tortured mentally that is why he has committed suicide which is not the fact. Learned senior counsel for the petitioners further submits that suicidal note has been recovered and looking into the suicidal note it is crystal clear that the deceased was having suicidal tendency and in this regard no investigation was made which is apparent from the suicidal note. He took the Court to the suicidal note which has been brought on record by way of counter- affidavit filed by the O.P. No. 2. By way of referring certain lines from the suicidal note, learned senior counsel for the petitioners submits that there is no ingredient of section 306 I.P.C., so far petitioners are concerned. He further refers to Annexure-2 of the petition which is an agreement between Barsha Agarwal-wife and Rahul Agarwal-husband. By way of referring Clause 9, 19, 20 and 23 of the said agreement, he submits that ingredient of section 306 I.P.C. is not made out so far as petitioners are concerned. He further refers to page 48 of the petition and submits that this agreement was witnessed by the witnesses by signing over it. He placed the entire F.I.R. and submits that looking into the entire F.I.R., no ingredient of section 306 I.P.C. is made out. From the facts, lastly, he draws the attention of the Court to one of the whatsapp message which is at page 79 and submits that in the whatsapp message it 4 has been disclosed that "now is the time for revenge, I will seek revenge from you in next 10 days." By way of referring this message, he submits that only on that event, the deceased brother of the informant committed suicide. By way of referring Annexure-7 and 7/1 to the petition, he submits that Barsha Agarwal informed the concerned officer in charge about the said message and requested to enquire the matter on 02.05.2022 and 05.05.2022. Learned senior counsel appearing for the petitioners further submits there is no materials against the petitioners to proceed and this Court sitting under section 482 Cr.P.C. is competent to quash the entire criminal proceeding.
5. On the point of ingredient of section 306 I.P.C., Mr. Mazumdar, learned senior counsel for the petitioners referred to judgment in the case of "Geo Varghese Vs. State of Rajasthan and Another" reported in 2021 SCC Online SC 873 wherein para 5, 13, 15, 31, 35, 40 and 41, the Hon'ble Supreme Court has held as under:
"5. Detailed facts as unfolded in the First Information Report by the complainant-Respondent No. 2 was that:
On 26.04.2018, my son Nitant Raj Lata, aged 14 years was found hanging with the fan in the room at 04 : 00 AM by his grandmother. Immediately, the knot was opened and after bringing him down, he was immediately taken to Santkba Durlabhji Hospital where doctors declared him brought dead. The Hospital administration informed the concerned Police Station immediately and on the same day, the body of deceased was handed over to the police and postmortem was conducted. It is further stated in the FIR that on 19.04.2018, Nitant Raj (the deceased) informed her that on the said day his PTI (Physical Training Instructor) GEO Sir had harassed and insulted him in the presence of everyone because of which he was under deep mental pressure. However, she persuaded her son and sent him to the School on Monday. Thereafter, on 25.04.2018, when the child was in the School, a telephone call was received from school at about 09 : 00 AM calling the parents to come to the school on the next day i.e., 26.04.2018. When Nitant returned from the school on 25.04.2018 again he was under very much pressure and on being inquired he told that today again GEO PTI Sir has harassed and insulted him very much. On this she persuaded the child that we will go to school tomorrow and will discuss because a phone call came from the school. Thereafter, the child had been under more severe pressure and tension. He went to his room to sleep and was found hanging at about 04 : 00 AM. It is further stated that on 30.04.2018 at 11 : 00 AM, Assistant Sub-Inspector Shri Kallu Khan, came to the house and searched his room where a suicide note in two pages and curtain which was used for hanging and other items like a blank copy from which two pages were torn and note book, etc. were recovered.
13. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to suicide is considered to be an offence under Section 309 IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under:--5
"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."
15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Abetment is defined under Section 107 of IPC which reads as under:--
"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 facilitates the commission thereof, is said to aid the doing of that act."
31. If, a student is simply reprimanded by a teacher for an act of indiscipline and bringing the continued act of indiscipline to the notice of Principal of the institution who conveyed to the parents of the student for the purposes of school discipline and correcting a child, any student who is very emotional or sentimental commits suicide, can the said teacher be held liable for the same and charged and tried for the offence of abetment of suicide under section 306 IPC.
35. The scope and ambit of inherent powers of the Court under Section 482 CrPC or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, every High Court has inherent power to act ex debito justitiae i.e., to do real and substantial justice, or to prevent abuse of the process of the Court. The powers being very wide in itself imposes a solemn duty on the Courts, requiring great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, the inherent power or the extra- ordinary power conferred upon the High Court, entitles the said Court to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court, or the ends of justice require that the proceeding ought to be quashed.
40. Insofar as, the suicide note is concerned, despite our minute examination of the same, all we can say is that suicide note is rhetoric document, penned down by an immature mind. A reading of the same also suggests the hyper-sensitive temperament of the deceased which led him to take such an extraordinary step, as the alleged reprimand by the accused, who was his teacher, otherwise would not ordinarily induce a similarly circumstanced student to commit suicide.
41. In the absence of any material on record even, prima-
facie, in the FIR or statement of the complainant, pointing out any such circumstances showing any such act or intention that he intended to bring about the suicide of his student, it would be absurd to even think that the appellant had any intention to place the 6 deceased in such circumstances that there was no option available to him except to commit suicide."
6. Relying on the aforesaid judgment, Mr. Mazumdar, learned senior counsel for the petitioners submits that in absence of materials ingredient of section 306 I.P.C. is not made out and relying on this judgment, the Court can quash the entire proceedings.
7. Mr. Mazumdar, learned senior counsel for the petitioners further submits that for the offence under section 306 I.P.C. there must be an abetment of suicide and there must be some instigation and in absence of that section 306 I.P.C. is not attracted. To buttress his argument, he relied upon judgment in the case of " Shabbir Hussain Vs. State of Madhya Pradesh and Others" reported in 2021 SCC Online SC 743 wherein para 1, 2, 3, 4 and 5 the Hon'ble Supreme Court has held as under:-
"1. On 10.09.2014, due to certain matrimonial dispute, Roshan Bee, wife of deceased Firoz Khan moved to her parental home. On 22.09.2014, Firoz Khan committed suicide in his house by consuming poison and also left four suicide notes.
2. Shabbir Hussain, brother of the deceased - Firoz Khan, preferred complaint i.e. Crime No. 1403/2014, which was registered against respondent Nos. 2 to 4 under Section 306/34 IPC. After investigation, chargesheet was filed against respondent Nos. 2 to 4 and Trial commenced against respondent Nos. 2 to 4. Respondent Nos. 2 to 4 preferred Criminal Revision No. 725/2016 under Section 397/401 Cr.P.C. before the High Court of Madhya Pradesh at Indore. The High Court allowed the Criminal Revision filed by respondent Nos. 2 to 4, aggrieved by which, the petitioner has preferred this special leave petition.
3. Learned counsel for the petitioner submitted that the High Court committed an error in allowing the Criminal Revision, especially after 10 witnesses had already been examined. He referred to the suicide notes that were written by the deceased Firoz Khan, to support his submissions that Firoz was harassed by respondent Nos. 2 to 4, due to which he took his own life. He argued that abetment of the offence of suicide by respondent Nos. 2 to 4 is prima facie made out as the harassment by respondent Nos. 2 to 4 facilitated the act of suicide by the deceased.
4. In order to bring a case within the provision of Section 306 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 instigating or by doing a certain act to facilitate the commission of suicide.
5. Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707]."
8. Learned senior counsel for the petitioners further submits that prosecution has tried to make out a case of harassment and for such case abetment 7 is necessary which is lacking in the case in hand. To buttress his argument, he relied upon judgment in the case of "Atul Kumar Vs. State of NCT of Delhi and Another" reported in 2021 SCC Online Del. 4107 wherein para 3, 4, 5, 11,12, 13, 27, 31, 34, the Hon'ble Supreme Court has held as under:-
"3. Learned counsel has submitted that the petitioner is a resident of USA, having interest in antique vintage motorcycles. While doing an online search, the petitioner came to know that one M/s Palli Motors, belonging to the deceased, was involved in the business of sale/purchase of vintage motorcycles. As the contact details of the deceased along with photographs of the motorcycles were displayed on the website http://www.flickr.com/photos/pallimotors, the petitioner contacted the deceased through an e-mail dated 27.05.2011 and expressed his desire to purchase a vintage BSA or Triumph or other British motorcycle from him. The deceased vide his reply e-mail dated 30.05.2011 quoted the price for two different BSA motorcycles i.e., Rs. 2,00,000/- for BB31 BSA 350CC and Rs. 2,70,000/- for WM20 BSA 500CC. The petitioner agreed to purchase the latter and as per instructions of the deceased, transferred a sum of USD 4,650 on 02.05.2012 in the account of one Narender Verma through banking channel, who acknowledged the receipt of the said amount through his E-mail dated 03.05.2012.
4. Learned counsel for the petitioner further submitted that despite the receipt of complete payment in the year 2012, the deceased did not handover the possession of the vintage motorcycle. On 11.11.2014, the petitioner came to India and on legal advice, had a legal notice dated 19.11.2014 issued to the deceased and Narender Verma. Later, a criminal complaint dated 27.11.2014 for offences punishable under Sections 420/406 IPC read with Section 120B IPC was also filed by him at Police Station Anand Parbat, Delhi against aforementioned persons. The petitioner, thereafter, left India on the intervening night of 5th and 6th December, 2014. On 09.12.2014, the deceased committed suicide and left behind a suicide note naming the present petitioner as the reason for taking the extreme step.
5. Learned counsel for the petitioner has contended that the petitioner only acted as per the legal advice given to him. It is not the prosecution case that the petitioner had either threatened the deceased or interacted with him during his stay in India. It was further submitted that taking legal recourse to one's remedy, by no stretch of imagination, amounts to abetment. It was also submitted that as the petitioner had left India on the intervening night of 5th and 6th December, 2014 and the suicide was committed by the deceased on 09.12.2014, the same cannot be said to be a direct result of any act of the petitioner. In support of his contentions, learned counsel has placed reliance on the following decisions:--
i) M. Mohan v. State reported as (2011) 3 SCC 626.
ii) Rohit v. The State of Maharashtra reported as 2020 SCC OnLine Bom 613.
iii) Rajesh @ Raja Yadav v. State of M.P. reported as 2016 SCC OnLine MP 9892.
iv) Sanju alias Sanjay Singh Sengar v. State of M.P. reported as (2002) 5 SCC 371.
v) Gulab v. State of Maharashtra reported as 2019 SCC OnLine Bom 147.
11. The issue involved when narrowed down is whether issuance of a legal notice and filing of a complaint case by the petitioner would amount to 'abetment' punishable under Section 306 IPC, which reads as under:
"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."8
12. 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. It is relevant to quote Section 107 IPC which defines "abetment" as-
"Section 107-Abetment of a thing - A person abets the doing of a thing, who--
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.- Whoever, either prior to or at the time of the commission of an 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."
13. To appreciate the contentions made by learned counsels for the parties, this Court deems it apposite to reproduce the suicide note, which reads as follows:
"28.11.2014 (My Declaration) This copy of letter is posted to Prime Minister, Delhi Police Commissioner and 5 other Ministries.
I'm innocent. ATUL R/o Punjabi Bagh in America, has been black mailing me against his money I have given him BSA 1952 350 CC Regd No DLQ 2524. It is standing in his rented place 23 Madan Park, where all his motorcycles are standing as he is threatening me to restore his motorcycles one he gave me on 1st/12/14 we loaded his bike. It's mostly done Completed Know as he told me he will take back his Complaint on completing his motorcycle Maticular 350 as I am completing it he said he will not pay me if I will not complete his motorcycle he will file a case and neelam (auction) this building which does not belong to me its my late father S.B.S Grewal property. I am the only one to earn the living for my family. For being a NRI Atul is taking benefit his cousin with his friend took BSA DLQ 2524 with papers and told me Atul will come to India and sign delivery papers but he did not gave me. Instead he started threatening me as I am mentally disturb don't know what to do. Kindly insaaf kiya jaye mere sath (kindly do justice with me). He is responsible for my DEATH. His Matchulass UPI other three digit no I have forget. I have done that one BSA I repaired for him (BSA 500 1942 Red Color). Standing in same Atul's place and police from police station also harassing me. (copies) send, To, Prime Minister To, Commissioner of Police To, Home Ministry To, High Court To, Supreme Court Respect and Regards Arvinder And let IQBAL SINGH to work here for his living at my place as I will I not be in this world to bear the tortures from Atul and my life.9
Arvinder As I have dropped messages on his phone and called him he is not responding.
ATUL no-USA +16127353911-IND 987... (not legible) Arvinder"
27. In the complaint filed by wife of the deceased, it has been alleged that the petitioner with a view to harass the deceased had issued the legal notice and filed the criminal complaint so that the deceased would repair his other two motorcycles free of cost. It is stated that the deceased was harassed and mentally tortured by the police officers on the complaint lodged by the petitioner. The deceased had told the complainant that he was called at the Police Station on 06.12.2014 where he was made to sit on his knees for a long period and was tortured/harassed. Due to the said act, he could not sleep the whole night and was disturbed. It is also stated that the deceased repeatedly tried to contact the petitioner on his phone but he avoided the phone calls.
31. The deceased had felt harassed but, in these facts, the act of petitioner could not be held to have abetted the deceased in committing suicide. The filing of a criminal complaint by the petitioner was his legal recourse, as advised to him. As noted above, the transaction between the petitioner and the deceased relating to purchase of a vintage motorcycle is an admitted fact. Whether the motorcycle was delivered to the petitioner or not, would have been established after inquiry. It cannot be said that by filing a criminal complaint against the deceased, the petitioner had the mens rea to instigate or goad the deceased to commit suicide; and further, that the deceased was left with no other option but to commit suicide. Even as per investigation, the deceased was called to the Police Station only once on 06.12.2014 i.e., three days before he committed suicide. Also, the acceptance of closure report qua the two police officers by the learned Metropolitan Magistrate and its affirmation by learned ASJ, has not been challenged by the complainant and has attained finality.
34. When the facts of the present case are analyzed in light of the legal principles extracted hereinabove, neither any live link nor any proximity between the acts of the petitioner and the act of committing suicide by the deceased is discernible. The requisite mens rea on part of the petitioner is also lacking. It cannot be said that the petitioner had abetted or instigated the deceased to commit suicide and that the deceased was left with no option but to commit suicide. This Court is of the opinion that necessary ingredients of the offence punishable under Section 306 IPC are not made out against the petitioner with the result that the petition is allowed and the impugned order passed by the learned ASJ directing the Trial Court to proceed with the matter, is set aside"
9. Learned senior counsel for the petitioners submits that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing which has been considered in the case of " Gangula Mohan Reddy Vs. State of Andhra Pradesh" reported in (2010) 1 SCC 750 wherein para 3,10 and 17 the Hon'ble Supreme Court has held as under:-
"3. The brief facts which are relevant to dispose of this appeal are recapitulated as under: according to the case of the prosecution, the appellant, who is an agriculturist had harassed his agriculture labour (servant) deceased, Ramulu by levelling the allegation that he had committed theft of some gold ornaments two 10 days prior to his death. It was also alleged that the appellant had demanded Rs 7000 from the deceased which was given in advance to him at the time when he was kept in employment. The prosecution further alleged that the deceased Ramulu could not bear the harassment meted out to him and he committed suicide by consuming pesticides.
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10. "Abetment" has been defined under Section 107 of the Code. We deem it appropriate to reproduce Section 107, which reads as under: "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 2 which has been inserted along with Section 107 reads as under:
"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."
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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."
10. Learned senior counsel for the petitioners further submits that from perusal of entire F.I.R., it appears that there is no link or intention on the part of the in-laws to assist the victim/deceased to commit suicide and submits that this aspect has been considered by the Hon'ble Supreme Court in the case of "Heera Lal and Another Vs. State of Rajasthan" reported in (2018) 11 SCC 323 wherein para 8 and 9 the Hon'ble Supreme Court has held as under:-
"8. We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498-A, the third ingredient for application of Section 113-A is missing, namely, that the relatives i.e. the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113- A of the Evidence Act would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide.
9. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is "abetment of suicide".11
11. Learned senior counsel for the petitioners further relied on judgment in the case of " Gurjit Singh Vs. State of Punjab" reported in (2020) 14 SCC 264 wherein para 35 and 38, the Hon'ble Supreme Court has held as under:-
" 35. Applying the aforesaid principles to the present case, we find that though the prosecution is successful in proving the case under Section 498-A IPC, we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption. ...............................................................................................................
38. It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable."
12. Relying all these judgments, Mr. Mazumdar, learned senior counsel for the petitioners submits that at this stage, the Court can quash the F.I.R. as the ingredients of section 306 I.P.C. are lacking.
13. Per contra, Mr. Manoj Kumar, learned G.A.-III appearing on behalf of the State submits that F.I.R. was lodged on 05.05.2022 and investigation is still going on and at this stage, the Court may not interfere with the investigation. He further refers to Annexure-2 that is agreement between Barsha Agarwal and deceased-Rahul Agarwal and submits that the e-stamp has been purchased by Barsha Agarwal at Jamshedpur wherein deceased was residing at Orissa. Referring to these documents, he submits that these facts are subject matter of trial. He further submits that suicidal note and video clipping of the deceased as per his instruction has been sent for F.S.L report but the F.S.L. report is awaited. He further submits that for applying section 482 Cr.P.C. for quashing the criminal proceeding there is no straight jacket formula and in the facts and circumstances of the case, the Courts may not exercise its jurisdiction under section 482 Cr.P.C. to quash the F.I.R. He further submits that at initial stage of investigation this Court is not required to quash the F.I.R. To buttress his argument, he relied in the case of "Vinod Raghuvanshi Vs. Ajay Arora & 12 Others" reported in (2013) 10 SCC 581. He further submits that recently the Hon'ble Supreme Court has issued guidelines in the case of "M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Ors." reported in 2021 (3) JBCJ 10(SC). He relied on Direction Nos. i to vii at para 23 of the said judgment which are quoted here-in-below:-
"23. (i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;"
14. Learned counsel for the State further relied on judgement in the case "Hemant Goyal Vs. The State of Jharkhand & Ors" W.P.(Cr.) No. 279 of 2021 which was decided on 28.09.2021 and submits that this Court has not interfered with quashing the F.I.R. and rejected the said petition in part.
15. Learned counsel for the State further submits that that while there is allegation in the F.I.R. and materials are there however the investigation is still going on these are subject matter of the trial. Relying on judgement in the case of "Jagmohan Singh Vs. Vimlesh Kumar & Other", Criminal Appeal No. 741 of 2022 arising out of Special Leave Petition (Criminal) No. 9339 of 2021) wherein para 5 & 6 the Hon'ble Supreme Court has held as under:-
"At this stage, we are not inclined to look into the correctness of the allegations made in the FIR. Ex- facie, the allegations in the FIR disclose an offence. Whether the persons named in the FIR have committed the offence or not, has to be decided upon trial, in the criminal proceedings.
The Court interferes in criminal proceedings, in exercise of the power under Section 482 of the Cr.P.C., in rare and exceptional cases, to give effect to the provisions of the Cr.P.C. or to prevent abuse of the 13 process of any Court or otherwise to secure the ends of justice."
16. Relying on all these judgements and facts, he submits that this petition is fit to be dismissed.
17. Mr. Saurabh Shekhar, learned counsel appeared suo-motu on behalf of the O.P. No. 2 and filed counter-affidavit. He submits that from perusal of entire F.I.R. ingredients of section 306 I.P.C. are made out. He submits that investigation is still going on and everything will come when the Final Form is submitted. He further submits that as per F.I.R. section 306 I.P.C. is made out or not, is required to be considered by this Court by way of going through the Final Form and materials available on record. He submits that there are materials on record to suggest that the deceased was forced to come to an end to his life which is apparent from the suicidal note, video clipping of the deceased. He further submits that false case under section 498A I.P.C. has been lodged against the entire family of the deceased. He further submits that the Investigating Officer was also in connivance with the petitioner in 498A I.P.C. case that is why Investigating Officer has been made accused in this F.I.R. He further submits that a sum of Rs. Five crores was demanded by the petitioners on the ground that criminal case shall be withdrawn against the deceased. He further submits that the marriage of the deceased took place in the year, 2012 and they blessed with two siblings in the year, 2016 one male and another female. He further submits that deceased was having love and affection for siblings particularly with girl child but the deceased was not allowed to meet with the children. He further submits that agreement has been signed in coercion which has been disclosed in the video clipping of the deceased and for quashing F.I.R. this Court may not consider at this stage.
18. On the point of love and affection of the children, learned counsel for the O.P. No.2 draws the attention of the Court at para 19 of the counter-affidavit filed by the O.P. No. 2 and submits that in the video clipping the deceased has presented emotional message to his family members and has requested that his remains after suicide may not be disposed of and be kept in safe custody for the children to commit last rites after they attend majority. To substantiate the averments made in para 19 14 of the counter-affidavit, he refers to suicidal note and submits that this fact has been disclosed therein which is subject matter of para 19 of the counter-affidavit. He refers to whatsapp message contained at page 81 of the petition and submits that by way of last chance the deceased was willing to meet his children that too was not allowed which has been sent in the whatsapp message. He further submits that the informant has filed F.I.R. on 16.05.2022 against unknown regarding threatening of killing. On these grounds, learned counsel for the O.P. No.2 submits that at this stage, this Court may not interfere with investigation.
19. So far as powers of the High Court under section 482 Cr.P.C. are concerned, on the point of suicide, learned counsel for the O.P. No. 2 relied on judgement in the case of "Didigam Bikshapathi and Others Vs. State of A.P." reported in (MANU/SC/8149/2007 wherein para 10, 11 and 12 the Hon'ble Supreme Court has held as under:-
"10. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage."
11. The suicide note clearly refers to the background in which the victim took the extreme step of taking away his own life by committing suicide. It is not a case where there is no reference to any act by the accused. In Netai Dutta case at para 6 it was observed as follows:
6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag."
12. In the instant case the suicide note clearly refers to the acts of the appellant-accused and the roles played by them. Therefore, the High Court rightly rejected the prayer of exercise of power under Section 482 of the Code. We make it clear that any observation made by the High Court and by us while dismissing of the present appeal shall be construed to be determinative factor in the trial."
20. On the point of suicide, Mr. Saurabh Shekhar, learned counsel for the O.P. No. 2 further relied on judgment in the case of " Padma Bai Vs. The 15 Inspector of Police" (Criminal Original Petition No. 2541 of 1991) decided on 18.06.1991 by the High Court of Madras wherein para 6 it has been held as under:-
"6. Mr. A. Natarajan, the learned counsel appearing for the petitioner would contend that prima facie, the suicide note left by Jagadeeswara Rao indicate an offence punishable under Section 306 I.P.C. and when that be so, under section 154 Criminal Procedure Code the case should be registered and investigation should commence and in this case despite this suicide note left by the deceased and the statement given by the petitioner to the police, the case was not registered and investigated and hence a direction may be issued to the respondent to register the case and investigate the same. I find force in this argument. If the suicide note left by the deceased prima facie indicates the commission of a cognizable offence, it is the duty of the respondent to register a case and investigate the same. I would like to make it clear that it is the duty of the investigating officer to investigate the case thoroughly and completely and file a final report positive or negative, as the case may be, depending upon the materials collected during the course of investigation."
21. The Court has gone through the submission of the learned counsel for petitioners, State and O.P. No. 2 and also gone through the materials on record. It is an admitted fact that the deceased was the husband of petitioner no. 4 namely Varsha Chudiwala @ Barsha Agarwal. The petitioner no. 4 has filed F.I.R. under section 498A I.P.C. against the deceased and his entire family members and he was on run as police was chasing him to arrest. The anticipatory bail of the deceased brother of the informant was rejected and anticipatory bail application was pending before the High Court however, in the meantime, he has committed suicide. On perusal of documents on record, it transpires that there are allegation of instigating the deceased by the petitioners. Even Rs. 5 crores was demanded by the petitioners for withdrawing the case. From this fact it cannot be said that this is not a ground of instigation. Looking into suicidal note which is running in 13 pages there are allegation of instigating the deceased by the petitioners. There is allegation that the deceased was even not allowed to meet his children and it was required to be looked into whether that is instigation for suicide or not however it is subject matter of investigation and trial.
22. As submitted by the learned counsel for the respondent-State that for suicidal note and video clipping the F.S.L report are awaited, what is in F.S.L. report, before coming to the conclusion, is also required to be looked into. Interfering with the case under section 482 Cr.P.C., there is no straight jacket formula. The High Court is interfering under section 482 Cr.P.C. on the facts and circumstances of the each 16 case before it. There is no doubt that if the Court comes to the conclusion where there are no ingredients even F.I.R. can be quashed. However, in the case in hand there are sufficient materials however which is subject matter of investigation and trial.
23. In the case of Geo Varghese(supra) relied by Mr. Mazumdar, learned senior counsel for the petitioners the facts of that case are with regard to suicide by one of the student penned down by an immature mind and court considered that it would be absurd to even think that the appellant had any intention and has come to the conclusion that there was no intention of mensrea that is why the Hon'ble Supreme Court interfered with those facts of the case. This judgement is not helping the petitioners.
24. In the case of " Shabbir Hussain"(supra), relied by Mr. Mazumdar, learned senior counsel for the petitioners wherein it has been held that in order to bring a case within the provision of section 306 I.P.C., there must be a case of suicide and in the commission of the said offence, a person must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of offence. In the facts of the present case there are allegation of instigation to the deceased to commit suicide and the act of the petitioners cannot be said that they have not facilitated to commit suicide. This judgment is not helping the petitioner.
25. In the case of Atul Kumar (supra) relied by Mr. Mazumdar, learned senior counsel for the petitioners was considered about the transaction between the petitioner of that case and deceased in which petitioner purchased motorcycle and that case the High Court has interfered with. This judgment is also not helping the petitioners.
26. In the case of Gangula Mohan Reddy (supra) relied by Mr. Mazumdar, learned senior counsel for the petitioners there are sufficient materials as in that case trial has been concluded and in that case, the Hon'ble Supreme Court relying on evidences of those P.Ws. has interfered with the matter and in the case in hand the investigation is still going on. This judgment is not helping the petitioners.
27. In the case of Heera Lal (supra) relied by Mr. Mazumdar, learned 17 senior counsel for the petitioners, the Hon'ble Supreme Court after examining the judgement of the Court after conclusion of the trial and has held that in the absence of vital link, finding of harassment would not lead to the conclusion that there is abetment of suicide. In the case in hand there are sufficient materials and report of F.S.L. and final form are still awaited as hereinabove this judgment is not helping the petitioners.
28. On the same judgment Gurjit Singh(supra) relied by Mr. Mazumdar, learned senior counsel for the petitioners was considered by the Hon'ble Supreme Court and in that case the trial was also concluded but in the case in hand the investigation is still going on. This judgment is not helping the petitioners.
29. The judgement relied by Mr. Manoj Kumar, learned counsel for "M/s Neeharika Infrastructure (supra) is not in dispute. The guidelines are there. For the High Court in coming to the conclusion there is guidelines of interference under section 482 Cr.P.C. in interfering with the matters.
30. When there is initial conclusion which is applied by the Court is as to whether uncontroverted allegation is made prima facie offence or not. At this stage the Court is not required to a roving enquiry to come to the conclusion that no prima facie case is made out. There are parameters for quashing the F.I.R. In the case of "
State of Haryana Vs. Bhajan Lal" reported in 1992 supp. (1) SCC 335 wherein para 102 the Hon'ble Supreme Court has held as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or 18 complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly 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."
31. The suicidal note and video clipping as argued, prima facie indicates the commission of instigation is there and that is required to be investigated which is still going on in the case in hand.
32. In view of the aforesaid facts and considering the submission of the learned counsel for the parties and also considering that the investigation is still going on, this is not a case of interference and accordingly, this criminal miscellaneous petition is hereby dismissed. However, observations made in taking note of judgments will not prejudice the independent investigation. Pending I.A, if any stands disposed of.
( Sanjay Kumar Dwivedi, J.) Satyarthi/