Gujarat High Court
Chaudhary Rameshbhai Haribhai vs State Of Gujarat on 24 July, 2024
NEUTRAL CITATION
R/SCR.A/10381/2018 ORDER DATED: 24/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10381 of 2018
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CHAUDHARY RAMESHBHAI HARIBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PANKAJ S CHAUDHARY(3269) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR SOAHAM M JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 24/07/2024
ORAL ORDER
1. Rule returnable forthwith. Mr. Soaham Joshi, learned APP waives service of notice of rule for and on behalf of the respondent no.1 - State. The respondent no.2 although served with the notice issued by this Court, yet he has chosen not to appear before this Court either in person or through an advocate and oppose this application.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused no.3 seeks to invoke the inherent powers of this Court praying for quashing of the F.I.R. being C.R. No.I-63 of 2018 filed before the Vadgam Police Station, District-Banaskantha, for the offence punishable under Sections-306 r/w.114 of the I.P.C.
3. The case of prosecution can be summarized in nutshell as under:-
Page 1 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined 3.1 It is the case of the complainant that the complainant is doing the business and running a shop for selling Gold and Silver ornaments in the name and style of "Jay Goga Jwellers"
and his father also used to sit in the said shop. They were running the said shop since last 22 years. It is further stated that earlier, they were running the said shop in the name of "Arbuda Jwellers". It is further stated that due to loss in the running business, they decided to change the name of said shop as "Jay Goga Jweller", the complainant's father borrowed money from the borrowers on high interest. It is further stated that their income was not good, therefore, they could not be able to pay amount of installment in time, the lender very often used to come to meet them for demand of money and they were also used to administer threat to face the consequences to his father since last more than one and half year.
3.2 It is the case of complainant that on 23.10.2018 at about 10.00 p.m., the complainant and his father were at home, during that time, (1) Rajendrasinh Rahaji Devda, (2) Faljibhai Daljibhai Patel (Khasor), (3) Rameshbhai Haribhai Patel (Talati), (4) Lilaben Faljibhai Khasor, (5) Kamleshbhai Bhardwaj, (6) Piyushbhai Raval, (7) Prakashbhai Khanjibhai Patel, (8) Vinodkumar@ Jignesh @ Chaturji Barot, all these persons had come at their home and stated that, they have not received interest uptill now and if you will not pay the said amount till tomorrow evening, then, we will kill your entire family. Then-
after, complainant had gone on tarace for sleeping. It is further stated that on 24.10.2018 at early morning when the complainant woke up, his father was doing vomitting and upon Page 2 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined asking him, he replied that, due to incessant and constant torture meted out to him by money lenders, he has drunk the poison. Therefore, the complainant immediately took him in the Hospital of Dr. Kunal Patel at Palanpur, then-after at noon about 1.00 p.m. his father died during the treatment. Therefore, the complainant took his father to Palanpur Civil Hospital, and also informed to police and the postmortem was carried out and then-after the dead body of his father was brought to his native village Basna, Taluka Visnagar. It is further stated that, on 31.10.2018, the complainant came at Vadgam, where he found one suicide note below the pillow of his father purportedly written in the handwriting of his father, wherein it is stated that, 'I am committing suicide due to the torture and harrasment meted out to me by the above mentioned eight money lenders. It is further stated that everything has been taken by the money lenders including property, land and money and therefore, I have no option left except to commit suicide. Therefore, the complainant has lodged the FIR.
4. Heard Ms. Pankaj Chaudhary, learned advocate for the applicant and Mr. Soaham Joshi, learned APP for the respondent - State.
5. Mr. Pankaj Chaudhary, learned advocate for the applicant submits that as per the case of the prosecution, the so-called incident occurred on 24.10.2018 whereas the FIR is filed on 06.11.2018, therefore, there is a gross delay in registering the FIR. He further submits that the complainant has not assigned any reason worth the explanation of delay. He further submits Page 3 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined that the FIR is filed by the complainant against total eight accused persons and the rest of seven accused persons have not approached this Court. Therefore, the Investigating Officer has carried out the investigation qua those persons and at the end of day, a chargesheet has already been filed against them, which ultimately culminated into the Sessions Case No.53 of 2019. He further submits that the applicant is protected by this Hon'ble Court and therefore, chargesheet has not been submitted by the Investigating Officer qua him, however, the trial qua other co-accused persons has already been proceeded with and ultimately concluded also. He further submits that the after considering and appreciating all the materials available on record, the learned Sessions Court, Banaskantha at Palanpur on 27.12.2022 passed judgment and order of acquittal and acquitted all the accused persons, who were tried before the court concerned. He further submits that so far as the case of the present applicant-accused is concerned, it is an admitted position of fact that the deceased has borrowed Rs.2 lakh from the present applicant-accused and in liew of said amount, the deceased has given cheque to the applicant-accused. The applicant has demanded the amount given to the deceased which the deceased failed to pay in time and therefore, the applicant had deposited the said cheque in the bank, but the said cheque has returned with an endorsement that "insufficient fund". Therefore, a legal recourse was adopted by the applicant by issuing advocate notice to the deceased, which was duly served to the deceased, but the deceased did not reply to the said notice. Therefore, the applicant has filed criminal complaint under Page 4 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined Section-138 of the N.I. Act against the deceased on 29.07.2016 before the Court of Judicial Magistrate First Class, Vadgam. He further submits that the complainant's verification was recorded and considering the allegations levelled against the deceased, the concerned court has issued process against the accused person, wherein, the summons issued by the court was duly served to the deceased and he also appeared in the court. Learned advocate further submits that thereafter the plea of the deceased was recorded and he was not pleaded guilty and therefore, the trial was proceeded and then-after chief-examination of complainant had already been recorded. He has produced copy of deposition of the complainant and submitted that at the relevant point of time, deceased did not make cross-examination of the complainant and thereafter, the matter was settled between the parties and as per the oral settlement, the deceased used to pay an amount of installments of Rs.5,000/- to the present applicant on every adjournment and also, the said fact was declared before the concerned court by way of filing pursis. Those documents are already annexed with the memo of application.
6. Mr. Pankaj Chaudhary, learned advocate further submits that lastly, the matter was posted on 20.10.2018 before the concerned court and at that relevant point of time, as per the oral agreement, the deceased has to pay an amount of Rs.10,000/- to the complainant, but due to financial constraints, he could not be able to pay the said amount. Therefore, deceased submitted an application specifically stating that he needs more time to pay the amount and the Page 5 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined said application was endorsed by the complainant specifically endorsing that he has "no objection", if time sought for is to be granted by the Hon'ble Court in favour of the accused. Considering the above-stated factual aspect, the court concerned has granted time. Mr. Chaudhary has tendered the copy of said documents across the bar, which is ordered to be taken on record.
7. Mr. Pankaj Chaudhary, learned advocate further submits that if the Hon'ble Court would make cursorily glance upon the body of complaint, in that event, it is found out that as per the case of the prosecution, the so-called incident is occurred on 24.10.2018 and all the accused persons have gone to the house of the complainant and demanded the amount from the father of the complainant on 23.10.2018. He further submits that the present complainant had already given consent for time before the court of law on 20.10.2018. Therefore, the question of going to the house of complainant with an intent to demand money and administered threat to the father of the complainant is out of question and prima-facie, it seems that story put forward by the complainant is not in-consonance with the documentary evidences available on record. Therefore, reliance cannot be made upon the said allegations levelled against the present applicant-accused. Mr. Chaudhary, learned advocate further submits that as the other co-accused, whose role is graver than the present applicant-accused have already been tried by the learned sessions court and after considering, appreciating and evaluating the evidence available on record, the learned Sessions Court acquitted all the accused persons Page 6 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined and hence,the prosecution instituted against the present applicant-accused is also required to be quashed and set aside as the case of the appellant is on far better pedestal than other accused.
8. Mr. Pankaj Chaudhary, learned advocate further submits that if the Hon'ble Court would go to the contents of the body of the FIR, in that event, it is found that the basic and requisite components to constitute the charge under Section-306 are missing in the body of FIR. The basic and essential ingredients to constitute the charge under Section-306 of IPC are (i) the abetment and (ii) the intention of the accused to aid and instigate or abet the deceased to commit suicide and in absence of basic ingredients of instigate/ abetment to commit suicide, the accused cannot be prosecuted and/or convicted under Section-306 of IPC.
9. At this juncture, Mr. Chaudhary, learned advocate put reliance upon the following decisions:-
(1) 2017 (0) AIJEL-HC 237588 Anuj Hemantbhai Bhatt Vs. State of Gujarat (2) 2017 (0) AIJEL-HC 237706 Vallabhbhai Vaghjibhai Vaghasiya Vs. State of Gujarat (3) (2021) 13 SCC 806 Kanchan Sharma Vs. State of Uttar Pradesh & Anr.
(4) (2021) 2 SCC 427 Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors.
10. Mr. Chaudhary, learned advocate has submitted that the principle of law as well as ratio enunciated by the Hon'ble Apex Page 7 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined Court as well as this Hon'ble Court is squarely applicable to the present case on hand. Referring to the aforesaid decisions as well as referring to the principle of law laid down by the Hon'ble Apex Court in case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, learned advocate appearing for the applicant has submitted that the impugned FIR is required to be quashed and set aside.
11. Mr. Soaham Joshi, learned APP has opposed the grant of present application with a vehemence and submitted that from bare perusal of the complaint, it prima-facie mentioned that the involvement of the present applicant in the commission of crime is find out and at the time of registration of FIR, the complainant has narrated entire sequence of incident in very categorically manner, which clearly goes to show that the involvement of present applicant-accused in the crime in question. It is specifically stated by the complainant that one day before the faithful day of incident, the father of the complainant has consumed the poisonous substance. The present applicant alongwith the other co-accused had gone to the house of the complainant and administered threat to the father of the complainant. Not only that, during the course of investigation, the Investigating Officer has also found the suicide note, which admittedly written by the deceased and signed by the deceased, which is identified by the son of deceased. The said suicide note was found from the pillow of deceased. Learned APP further submits that if the Hon'ble Court would see the contents of the said suicide note, in that event, it would be found that the deceased had borrowed Rs.2 lakh from the present applicant and Page 8 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined at the relevant point of time, he had given cheques to the applicant, in which, one cheque was utilized by the applicant by registering complaint against the deceased and the deceased used to pay the regular installments in the criminal proceedings, however, the applicant used to administer threat to the deceased specifically stating that still the blank cheques were lying with him and those cheques would be used and utilized by filling the amount of Rs.2 lakh and rest of amount would be taken from him, due to which, the deceased had gone in depression and under the frustrated state of mind, took decision to commit suicide. Therefore, the role of the present applicant-accused is quite different, distinct and dissimilar than the other co-accused. Considering the above stated factual aspect, the prosecuting agency be directed to carry out the investigation and submit an appropriate report before the competent court as prima-facie, the involvement of the present applicant-accused is clearly spelt out from the body of the FIR. Learned advocate submitted that bare perusal of the contents of the FIR clearly goes on to show that there was constant mental and physical torture meted out to deceased at the hands of the accused, which led the deceased to commit suicide and the said fact is supported by the documents collected by the Investigating Officer during the course of investigation. It is, therefore, urged that the present application may not be allowed.
12. Having heard learned advocates for the respective parties and on perusal of the contents of the FIR, the issue falls for my consideration is to whether the case is made out for invoking inherent powers of this Court?
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13. At the outset, it is apt to refer the law laid down by the Hon'ble Apex Court in case of Bhajan Lal (supra). The relevant para reads as under:
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, the following categories of cases are given 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 formula 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 F.I.R. 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 '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 Page 10 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined provision in the Code or the concerned Act, (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."
14. The Hon'ble Apex Court in case of R.P. Kapur (supra) has summarised some categories of cases where inherent power can and should be exercised to quash the proceedings, which are as under:-
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
15. In view of the ratio enunciated by the Hon'ble Apex Court in the aforesaid decisions as well as other decisions, it is required to be noted that whenever the accused came before the Court invoking either the inherent powers under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIR impugned essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, in that event, in such circumstances, the Court owes a duty to look into the FIR with care and a little more closely. The Court while exercising its jurisdiction under Section 482 of the CrPC need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the Page 11 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined initiation/ registration of the case as well as the materials collected in the course of investigation.
16. At this juncture, before adverting to the issue involved in the matter, I would like to refer to certain case laws wherein the Hon'ble Apex Court as well as different High Courts have very succinctly crystallized the position of law so far as Sections 306 and 107 of the Indian Penal Code are concerned. This Court in recent decision in case of Chandresh Vasantbhai Malani (supra) has considered the issue involved in the present matter considering the decision of the Hon'ble Supreme Court, in the case of Geo Verghese Vs. State of Rajasthan, reported in AIR 2021 SC 4764. In the said decision of the Hon'ble Supreme Court, it has been observed and held as under:
"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 :-
"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."
14. Though, the IPC does not define the word 'Suicide' but the ordinary dictionary meaning of suicide is 'self- killing'. The word is derived from a modern latin word 'suicidium' , 'sui' means 'oneself' and 'cidium' means 'killing'. Thus, the word suicide implies an act of 'self- killing'. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself.
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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."
16. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar Vs. State of Chhattisgarh1 has defined the word 'instigate' as under :-
"Instigation is to goad, urge forward, provoke, incite or encourage to do an act."
17. The scope and ambit of Section 107 IPC and its co- relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr.2 , it was observed as under:-
"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 the Supreme Court is clear that in Page 13 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
18. In a recent pronouncement, a two-Judge Bench of this Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors.3 , while considering the co-relation of Section 107 IPC with Section 306 IPC has observed as under :-
"47. The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 of the 14 (2014) 4 SCC 453 PART I 33 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal(Bhajan Lal) include a situation where the allegations made in the FIR 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. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs State of Maharashtra.
48. The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a 15 1992 Supp. 1 SCC 335 16 (2019) 14 SCC 350 PART I 34 fundamental issue which needed to be considered while dealing with a petition for quashing under Article Page 14 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant's prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task."
17. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police4 , a two-Judge Bench of this Court has expounded the ingredients of Section 306 IPC in the following words:-
"The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
xxx xxx xxx
23. In the backdrop of the above discussion, we may now advert to the facts of the present case to test whether the ingredients of offence under Section 306 IPC exist, even prima-facie, to continue with the investigations.
24. The FIR recites that victim boy was under deep mental pressure because the appellant herein had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by the complainant. When he returned from the school, again he was under very much pressure and on being enquired told that today again he was harassed and insulted by the GEO, PTI Sir (the appellant). The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension."
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18. In the aforesaid decision of the Hon'ble Supreme Court in the case of Geo Varghese (supra), the Hon'ble Supreme Court has observed and held as under:
"32. Considering the facts that the appellant holds a post of a teacher and any act done in discharge of his moral or legal duty without their being any circumstances to even remotely indicate that there was any intention on his part to abet the commission of suicide by one of his own pupil, no mens rea can be attributed. Thus, the very element of abetment is conspicuously missing from the allegations levelled in the FIR. In the absence of the element of abetment missing from the allegations, the essential ingredients of offence under section 306 IPC do not exist."
19. At this juncture, I would like to refer and rely upon the decision of the Hon'ble Apex Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors. reported in (2021) 2 SCC 427. The relevant paragraphs read as under:-
"49. Before we evaluate the contents of the FIR, a reference to Section 306 of the IPC is necessary. Section 306 stipulates that if a person commits suicide "whoever abets the commission of such suicide" shall be punished with imprisonment extending up to 10 years17. Section 107 is comprised within Chapter V of the IPC, which is titled "Abetment". Section 107 provides:
"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 willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or Page 16 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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."
50 The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306 to which a reference is necessary in order to furnish the legal foundation for assessing the contents of the FIR. These provisions have been construed in the earlier judgements of this Court in State of West Bengal vs Orilal Jaiswal 18 , Randhir Singh vs State of Punjab19 , Kishori Lal vs State of MP 20 ("Kishori Lal") and Kishangiri Mangalgiri Goswami vs State of Gujarat 21. In Amalendu Pal vs State of West Bengal22 , Justice Mukundakam Sharma, speaking for a two judge Bench of this Court and having adverted to the earlier decisions, observed "12...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 led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
51. The Court noted that before a person may be said to have abetted the commission of suicide, they "must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide". Instigation, as this Court held in Kishori Lal (supra), "literally means to provoke, incite, urge on or bring about by persuasion to do anything". In S S Chheena vs Vijay Kumar Mahajan23 , a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, observed:
"25. Abetment involves a mental process of instigating a Page 17 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."
52 Madan Mohan Singh vs State of Gujarat 24 was specifically a case which arose in the context of a petition under Section 482 of the CrPC where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(B) of the IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days' wages from his salary. The suicide note named the accused-appellant. In the decision of a two judge Bench of this Court, delivered by Justice V S Sirpurkar, the test laid down in Bhajan Lal (supra) was applied and the Court held:
"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide.
11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should Page 18 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined commit suicide because of this."
53 Dealing with the provisions of Section 306 of the IPC and the meaning of abetment within the meaning of Section 107, the Court observed:
"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. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note."
The Court noted that the suicide note expressed a state of anguish of the deceased and ―cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide‖. Reversing the judgement of the High Court, the petition under Section 482 was allowed and the FIR was quashed.
54 In a concurring judgment delivered by one of us (Dhananjaya Y Chandrachud J) in the decision of the Constitution Bench in Common Cause (supra), the provisions of Section 107 were explained with the following observations:
"458. For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct or action which (in the context of the present discussion) facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 IPC."
55 More recently in M Arjunan vs State (represented by its Inspector of Police)25 , a two judge Bench of this Court, speaking through Justice R. Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:
"7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.Page 19 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024
NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."
56 Similarly, in another recent judgment of this Court in Ude Singh and Ors. vs State of Haryana26 , a two judge Bench of this Court, speaking through Justice Dinesh Maheshwari, expounded on the ingredients of Section 306 of the IPC, and the factors to be considered in determining whether a case falls within the ken of the aforesaid provision, in the following terms:
"38. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
39. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more Page 20 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."
57 Similarly, in Rajesh vs State of Haryana27, a two judge Bench of this Court, speaking through Justice L. Nageswara Rao, held as follows:
"9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment 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. In order to bring a case within the purview 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 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."
58 In a recent decision of this Court in Gurcharan Singh vs State of Punjab28 , a three judge Bench of this Court, speaking through Justice Hrishikesh Roy, held thus:
"15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased."
59 In Vaijnath Kondiba Khandke vs State of Maharashtra and Ors.29 , a two judge Bench of this Court, speaking through Justice U.U. Lalit, dealt with an appeal against the rejection of an application under Section 482 of the CrPC, for quashing an FIR registered under Sections 306 and 506 read with Section 34 of the IPC. A person serving in the office of the Deputy Director of Education Aurangabad had committed suicide on 8 August 2017. His wife made a complaint to the police that her husband was suffering from mental torture as his superiors were getting heavy work done from her husband. This resulted in him having to work Page 21 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined from 10 AM to 10 PM and even at odd hours and on holidays. The specific allegation against the appellant was that he had stopped the deceased's salary for one month and was threatening the deceased that his increment would be stopped. This Court noted that there was no suicide note, and the only material on record was in the form of assertions made by the deceased's wife in her report to the police. The Court went on to hold that the facts on record were inadequate and insufficient to bring home the charge of abetment of suicide under Section 306 of the IPC. The mere factum of work being assigned by the appellant to the deceased, or the stoppage of salary for a month, was not enough to prove criminal intent or guilty mind. Consequently, proceedings against the appellant were quashed."
20. As discussed herein-above, it is an admitted position of fact that the deceased has taken Rs.2 lakh from the present applicant-accused and in view of said amount, the deceased has given cheque to the applicant-accused. The applicant has demanded the amount given to the deceased, which the deceased has not paid and therefore, the applicant had deposited the said cheque in the bank, but the said cheque has returned with endorsement "in sufficient fund". Therefore, the applicant has adopted legal recourse available under law. However, bare perusal of the contents of the FIR coupled with the documents produced on record by learned advocate for the applicant, it cannot be said that there was any intention on their part to abet the commission of suicide to the deceased and therefore no mens rea can be attributed. Thus, in the opinion of this Court, the very element of abetment is missing from the allegations levelled in the FIR and in absence of the element of abetment from the allegations, the offence under Section 306 of the IPC would not be attracted.
21. Having regard to the provisions of Sections 107 and 306 of the Indian Penal Code and the principle laid down by the Page 22 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined Hon'ble Supreme Court in various decisions referred to in the case of Lalitbhai Vikramchand Parekh Vs. State of Gujarat delivered in Criminal Misc. Application No.16032 of 2014 & allied matters decided on 10 th April, 2015, it is apparent that in a case under Section 306 of the IPC, there should be correct mens rea to commit the offence under this section and there should be direct and active role by the accused, which led the deceased to commit the suicide, that is to say that there cannot be same evidence of "instigation" or "initial assistance" by the accused to commit suicide by the victim/deceased. Further in order to bring the case within the purview of 'Abetment' under Section 107 of the IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused, which in the facts of the present case, is lacking.
22. In the facts of the present case, clause secondly and thirdly in Section 107 will have no application. Now, the question remains is as to whether the applicants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide. In the present case, taking the contents of the FIR and the statements of the witnesses as correct, it is impossible to Page 23 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined conclude that the applicants instigated the deceased to commit suicide. By no stretch of the imagination, the alleged acts of the applicant can amount to instigation to commit suicide.
23. From the bare perusal of the section-306, it clearly transpires that in order to convict a person for the offences under Section 306 IPC, the basic and essential ingredients of the offence namely where the death was suicidal and whether there was an abetment and instigation on the part of the accused as contemplated in Section 107 IPC have to be established.
24. It is found out from the provision of IPC that the provision of IPC does not define the word "suicide" but the ordinary dictionary meaning of suicide is self-killing. The word is derived from a modern latin word suicidium, sui means oneself and cidium means killing. Thus, the word suicide implies an act of self-killing. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same.
25. The scope and ambit of inherent powers of the Court under Section 482 Cr.P.C. or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, the High Court has inherent power to act ex debito justitiae i.e., to do Page 24 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined 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. Thus, from the aforesaid discussion, I am of the opinion that the allegations in the first information report if taken at its face value and accepted in their entirety, they do not constitute the offence alleged. Therefore in view of the above facts of the case, in my considered opinion, the impugned FIR is nothing but a sheer abuse of the process of law and if the same is allowed to be continued, in that event, it would be nothing short of abuse of process of law and travesty of justice. Hence, this is a fit case, wherein the inherent power under Section 482 of the CrPC should be exercised for the purpose of quashing and setting aside the impugned FIR. Therefore, the present application deserves to be allowed.
26. For the forgoing reasons, this application is allowed. The F.I.R. being C.R. No.I-63 of 2018 filed before the Vadgam Police Station, District-Banaskantha is hereby quashed and set aside. All consequential proceedings pursuant thereto shall stand Page 25 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024 NEUTRAL CITATION R/SCR.A/10381/2018 ORDER DATED: 24/07/2024 undefined terminated. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(DIVYESH A. JOSHI,J) A. B. VAGHELA Page 26 of 26 Downloaded on : Fri Aug 16 21:03:04 IST 2024