Madhya Pradesh High Court
Anil vs The State Of Madhya Pradesh on 15 March, 2017
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M. Cr. C. No.1961/2017
15/03/2017
Shri Manish Yadav, learned counsel for the applicant.
Shri Sudhanshu Vyas, learned counsel for the
respondent/State.
Learned counsel for the applicant has filed present petition for quashment of FIR under Section 482 of Code of Criminal Procedure, 1973 in respect of Crime No.644/2016 registered at Police Station Sarangpur, Distt. Rajgarh for offence under Section 306/34 of the IPC read with Section 4 of M. P. Debtors Protection Act.
The contention of learned counsel for the applicant is that a similarly placed co-accused person has also approached this Court by filing a petition under Section 482 of Code of Criminal Procedure, 1973 for quashment of FIR and the same has been allowed. He has categorically stated that present applicant is an identically placed person.
Learned Government Advocate after going through the record and order dated 07/03/2017 passed in M.Cr.C.No. 1706/2016 (Chandmal Dandwani Vs. State of M.P.) has not denied the aforesaid averment. He has also stated that the present applicant is an identically placed person like Chandmal Dandwani.
The order passed in the case of Chandmal Dandwani -2- dated 07/03/2017 reads as under:-
"This is a petition u/s. 482 of the Criminal Procedure Code, 1973 (hereinafter, for short, 'the Code') praying for quashment of first information report (FIR) bearing Crime No.644/2016 registered at Police Station Sarangpur, District Rajgarh for offence u/s. 306/34 of the IPC and Section 4 of the M.P. Protection of Investors Right Act, 2000 against the petitioner and 3 other persons viz. Hukumchand Soni, Sumit Soni and Anil.
2. As per prosecution, one Hakim Ali committed suicide on 7.12.2016 by consuming poisonous substance 'Celphos'. Allegedly, he had procured a loan of Rs.2,00,000/- from Hukumchand Soni as he had to go to Dubai to earn his livelihood. Hakim Ali was required to pay Rs.12,500/- per month as interest to Hukumchand Soni and that, whenever, there was a default, his son - Sumit Soni used to pressurise the deceased asking him to pay interest as well as the principal in a timely manner. As per prosecution, on 27.12.2016 Hakim Ali borrowed Rs.50,000/- from the petitioner - Chandmal Dandwani, to repay part of the loan borrowed earlier by him from Hukumchand Soni. Allegedly, on 30.11.2015, he further borrowed a loan of Rs.2.50 Lakhs from the petitioner - Chandmal Dandwani for household expenses. As per prosecution, Hakim Ali was required to pay Rs.9,000/- per month to petitioner - Chandmal Dandwani as interest on the money said to have been borrowed by him from him. Allegedly, Hakim Ali in his statement, which was recorded prior to his death by Executive Magistrate, has stated that he was being put to harassment by Hukumchand Soni, Sumit Soni, Anil and petitioner - Chandmal Dandwani with regard to recovery of loan and interest amount.
3. Learned counsel for the petitioner inviting the attention of this Court to the statement of Jubeda, the wife of Hakim Ali (deceased) recorded u/s. 161 of 'the Code' submits that she has clearly stated that the deceased was not being subjected to any sort of harassment by the petitioner - Chandmal Dandwani and that, the petitioner has extended the loan twice, first time Rs.50,000/- and second time Rs.2.50 Lakhs to Hakim Ali in order to help him. It is submitted by learned counsel for the petitioner that even if, all the material available in the charge-sheet against the petitioner, is accepted at its face value, still the necessary ingredients to constitute an offence u/s. 306 of IPC are not made out against him because there is no allegation that the petitioner at any point of time provoked, encouraged, suggested, goaded or instigated the deceased to commit suicide. It is further submitted that even if for the sake of argument it is accepted that the petitioner harassed Hakim Ali for recovery of loan, then it will not amount instigation within the -3- meaning of Section 307 read with Section 306 of the IPC. Reliance in this regard has been placed in Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C. 1998.
4. The learned Public Prosecutor has not disputed the factual position that Jubeda, wife of the deceased, has not made any allegation of harassment against the petitioner. However, it is contended that the deceased in the dying declaration has clearly stated that he was being subjected to harassment, therefore, prima facie offence u/s. 306/34 of IPC is made out against the petitioner.
5. Heard learned counsel for the parties and perused the record.
6. The law is well settled that unless it is shown that the deceased was being instigated, suggested, goaded or provoked to commit suicide and that, the accused intended to abet the deceased to commit suicide, a prosecution for offence u/s. 306 of IPC cannot be launched. It has repeatedly been held that to constitute an offence u/s. 306, element of instigation, provocation, suggestion, etc. must invariably be present.
7. In M.Cr.C. No.13075/2016 (Omprakash Agrawal vs. State of M.P., Order dated 20.01.2017, Bench Indore) the legal position regarding offence under Section 306 r/w Section 107 of IPC has been considered by this Court in the light of various pronouncements of Hon'ble the apex Court; relevant paras whereof run as under:
'Abetment to commit suicide' is an offence under Section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and fine. Expression 'Abetment' has been defined in Section 107 of IPC which runs 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 willful misrepresentation, or by willful 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"-4-
In the State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532, the apex Court explaining the meaning and expanse of word 'abetment' as used in Section 107 of IPC, has held as under:
"Abetment" as defined by Section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word "instigate" in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. The dictionary meaning of the word "aid" is to give assistance, help etc. In Rakesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618, a three Judge Bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under ( para. 20):
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
Taking note of the fact that each person's suicidability pattern is different from others and that each person has his own idea of self-esteem and self-respect, the apex Court in M. Mohan Vs. State of Madras, 2011 CRI.L.J. 1900 (S.C.), referring to its earlier decision in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, held that to constitute abetment, there should be intention to provoke, incite or encourage the doing of an act by the accused.
Reference can also be made to the decision of the -5- apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (Suppl.) Cr.L.R. (SC) 261, wherein the allegation was that the deceased was beaten by the accused and was also subjected to harassment, due to which he committed suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh & Anr. Vs. State of M.P., (1995) Supp. 3 SCC 731 and Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, holding that offence of abetment to commit suicide under Section 306 of IPC is not made out, 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".
In Deepak V. State of M.P., 1994 Cri. LJ 767 (M.P.), the deceased girl was threatened with defamation, if she refused to have sexual intercourse with two accused; within an hour she committed suicide leaving a suicidal note. Accepting the plea that the act of the accused might have been a reason for committing suicide but the same did not constitute abatement within the meaning of Section 306 read with Section 107 of the IPC, it was held that - "neither there was any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused persons, therefore, cannot be held guilty of the offence under Section 306 of the I.P.C. and their conviction on that count by the trial Court, is liable to be set aside."
In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C. 1998, the accused was charged under Section 306 of IPC for abetting his brother-in-law to commit suicide; the accused allegedly said to him to 'go and die'; the deceased left behind a suicide note stating that accused is responsible for his death. It was held that words "go and die" do not constitute instigation for mens rea of offence under Section 307 of IPC.
In Mahendra Singh and Anr. Vs. State of M.P., 1996 Cri.L.J. 894=1995 Supp (3) SCC 731, a case prior to the insertion of Section 113-A in the Evidence Act, the charge under Section 306 IPC proceeded on the basis of dying declaration of the deceased to the effect that - "My -6- mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in- law. Because of these reasons and being harassed I want to die by burning." Considering legal sustainability of the same the apex Court held as under:
"Abetment has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased."
From the aforesaid pronouncements of the apex Court, it flows that to constitute abetment to commit suicide, there must be material, prima-facie, indicating that accused with a positive act on his part instigated, incited, aided or provoked the person to commit suicide.
In the instant case, the allegation made in the suicide-note is that the petitioner had harassed the deceased because the money borrowed by one Rajendra Singh was not being repaid to the petitioner. The allegations that have been in the suicide-note or statement of Bane Singh - father of the deceased, even if taken true at their face value does not a prima-facie indicate that the petitioner by positive act on his part instigated, incited, aided or provoked the deceased to commit suicide. A bare act of harassment in absence of anything else cannot amount to abetment to commit suicide, therefore, in the considered opinion of this Court, on the basis of material collected by the police during investigation and filed with the charge-sheet, prima-facie a case under Section 306 of IPC is not made out against the petitioner.
In Devendra and others vs. State of Uttar Pradesh and another, (2009) 7 SCC 495, it has been held as under:
"when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a -7- criminal court for nothing."
8. In the light of aforesaid, even if all the allegations made in the charge-sheet against the petitioner are accepted as such, still necessary ingredients to constitute an offence u/s. 306 of the IPC, even prima facie, are not made out, therefore, it is a fit case for quashment of first information report so also all consequent proceedings against the petitioner.
9. Accordingly, this petition deserves to be and is hereby allowed. The first information report and the consequent proceedings in Crime No.644/2016 registered at Police Station Sarangpur, District Rajgarh against the petitioner are hereby quashed."
In light of the aforesaid order passed in the case of an identically placed person, the FIR and the consequent proceedings in respect of Crime No.644/2016 registered at Police Station Sarangpur, Distt. Rajgarh are hereby quashed.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej