Madhya Pradesh High Court
Amit Asthana vs The State Of Madhya Pradesh on 5 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 5th July, 2022
MISC. CRIMINAL CASE NO. 18945 of 2022
Between:-
AMIT ASTHANA, SON OF SHRI
JAGDISH ASTHANA, AGED 42 YEARS,
OCCUPATION :- BUSINESS, RESIDENT
OF 74-C, JAWAHAR COLONY,
LASHKAR, GWALIOR, MP
.... PETITIONER
(SHRI SAMEER KUMAR SHRIVASTAVA- ADVOCATE
FOR PETITIONER)
AND
(1) STATE OF MP THROUGH POLICE
STATION HAZIRA, DISTRICT GWALIOR,
MP
(2) ASHOK SINGH RAJPUT, SON OF
SHRI KUNDAN SINGH RAJPUT, AGED 56
YEARS, RESIDENT OF S.L. CONVENT
SCHOOL GALI, MADHVI NAGAR,
2
GADAIPURA, HAZIRA, DISTRICT
GWALIOR, MP
......RESPONDENTS
(MS. ABHA MISHRA- PUBLIC PROSECUTOR FOR
RESPONDENT NO.1/ STATE AND SHRI S.K. KHARE, COUNSEL
FOR RESPONDENT NO.2- COMPLAINANT )
Reserved on : 28/06/2022
Passed on : .5th July, 2022
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The present petition coming on for final hearing, Hon'ble Shri Justice Rajeev Kumar Shrivastava, passed the following:-
The present petition under Section 482 of CrPC has been filed by petitioner for quashment of FIR as well as charge-sheet in connection with Crime No.466 of 2021 registered at Police Station Hazira, District Gwalior for offence under Section 306 read with Section 34 of IPC and other subsequent criminal proceedings initiated thereof.
(2) Facts giving rise to present petition in short are that on 16-10-
2021, an FIR was lodged against petitioner and one Manish Saxena alleging therein that complainant Ashok was informed by his neighbourer that deceased Gyanesh consumed some poisonous substance by which he was taken to JAH Hospital, Gwalior where the deceased 3 was being treated, however, at 07:40 pm he died, on the basis of which a merg no.33/2021 was recorded. At the time of merg enquiry, statements of wife, daughter and complainant were recorded wherein they stated that due to harassment made by petitioner along with other co-accused persons, the deceased committed suicide. It is alleged that deceased had given Rs.20 lac to petitioner, co-accused Manish Saxena and Arun Asthana between 2015-2017 and when deceased demanded said money, petitioner along with other co-accused refused to repay the said amount and also issued cheque in favour of deceased which was dishonoured as a result of which deceased Gyanesh committed suicide. Therefore, impugned FIR has been registered against petitioner along with other co-accused. Hence, this petition.
(3) It is the say of learned counsel for the petitioner that learned trial Court has framed charge-sheet against petitioner which is foreign to law. It is further contended that brother of petitioner, namely Arun has also committed suicide due to atrocities committed by the deceased Gyanesh by which the deceased was being arrested by police and FIR in this 4 regard was earlier registered which is Annexure P2. Even prior to registration of FIR, sister-in-law (Bhabhi) of petitioner made a complaint against deceased that deceased came to the shop of the petitioner and threatened family members. The complaint filed by sister-in-law of the petitioner is Annexure P3 as a result of which, deceased was being arrested in connection with suicide committed by brother of petitioner. It is further contended that petitioner has been falsely implicated by family members of deceased and in turn, deceased had filed an application under Section 156(3) of CrPC before the Magistrate by which the learned Magistrate called the record from the police and fixed case for 24-09- 2021 and the police recorded the statements of witnesses but the police could not file any report. It is further contended that since the deceased has already filed an application under Section 138 of Negotiable Instruments Act against petitioner vide Annexure P5, therefore, no offence under Section 306 of IPC is made out against the petitioner. Just prior to the death of deceased, there is no specific allegation of instigation or abetment with the deceased to commit suicide as no 5 ingredients of Section 107 of IPC are made out against the petitioner. There is no direct or proximate link between death and act of petitioner and there is no mens rea on the part of the petitioner to instigate deceased to commit suicide. Hence, it is prayed that impugned FIR as well as charge-sheet in connection with Crime No.466 of 2021 deserves to be quashed.
(4) On the other hand, learned counsel for the State as well as counsel for complainant opposed the contentions of petitioner and submitted that there is specific allegation against petitioner along with other co-accused in regard to non-payment of Rs.20 lac by which deceased has committed suicide. Hence, prayed for dismissed of this petition. (5) I have heard learned counsel for the parities and gone through the entire documents available on record.
(6) As noted above, the genesis of matter lies in regard to transaction entered into between petitioner along with other co-accused persons and deceased with respect to non-repayment of Rs.20 lac which was given by deceased. It is the say of petitioner that his brother had also committed 6 suicide because of non-returning his registered motorcycle which was given earlier to deceased and deceased was sent to jail in connection with that case as a result of which he committed suicide, therefore, complainant has falsely filed a complaint before the Magistrate under Section 156(3) of CrPC. Therefore, the entire issue involved in the present matter as to whether filing of a complaint case by complainant would amount to 'abetment' punishable under Section 306 IPC or not?
(7) Section 306 of IPC 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) 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 7 107 IPC which defines "abetment" as under:-
"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."
(9) In the matter of Gurcharan Singh vs. State of Punjab (2017) 1 SCC 433, the Hon'ble Supreme Court has observed as under:-
"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or 8 absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalizes the sustained incitement for suicide."
(10) To attribute the acts of the petitioner as abetment, there has to be some causal link and proximity of the acts of petitioner with deceased committing suicide. It has to be shown that petitioner did an active act or direct act which led deceased to commit suicide seeing no option. Also, it has to be shown that the petitioner's act must have been intended to push deceased into such a position that he committed suicide. Further, the prosecution has to show that petitioner had mens rea to commit the offence. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. The Supreme Court has given observations in this regard in the matter of Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 wherein it has been explicated as under:-
9
"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."
(11) Similarly, in the matter of Ude Singh & Others v. State of Haryana reported as (2019) 17 SCC 301, the Hon'ble Apex Court while taking into account the different ways in which different people react to similar actions has observed as under:-
"16.1. 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 10 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 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."
(12) Again, in the matter of M. Arjunan v. State (Represented by its Inspector of Police) (2019) 3 SCC 315, the Hon'ble Supreme Court elucidated the essential ingredients of offence under Section 306 IPC in the following manner:-
"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, 11 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 the accused cannot be convicted under Section 306 IPC."
(13) In the present case, a complaint under Section 156(3) Cr.P.C was filed which on the direction given by the Magistrate concerned, the matter was investigated by the police and after completion of investigation and other formalities, a charge sheet has been filed. From the sequence of events as apparent from a combined reading of complaint and investigation conducted, it is seen that the complaint filed by complainant with an ulterior motive. It is alleged that Rs.20 lac was given by the deceased to the petitioner along with other co-accused persons and when he asked for repayment of same, the petitioners along with other co-accused persons did not repay aforesaid amount as a result of which the deceased committed suicide. It is apparent from the record that if there was some financial transaction between the accused and deceased and said transaction amount is not paid, then it cannot be said 12 that there was some instigation or on the part of accused to abet the deceased to commit suicide. The deceased was having full remedies under the various Acts to get the money back but either that was being done by deceased or any complaint filed by the deceased before any authority prior to his death. Therefore, on the basis of aforesaid, it cannot be said that there is an instigation or abetment on the part of petitioner. Under such circumstances, the act of petitioner could not be held to have abetted the deceased in committing suicide. As noted above, it cannot be said that petitioner had 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.
(14) In the matter of State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court while summarizing the principles of law governing the exercise of the inherent powers under Section 482 Cr.P.C.to prevent abuse of the process of court or otherwise to secure the ends of justice held that such power could be invoked to bring an end to the criminal prosecution in cases where the 13 uncontroverted allegations made in FIR or complaint and evidence collected in support of same do not disclose commission of any offence and make out a case against accused.
(15) When the facts of present case are analyzed in light of legal principles extracted herein-above, neither any live link nor any proximity between the acts of petitioner and the act of committing suicide by 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 deceased to commit suicide and that deceased was left with no other option but to commit suicide. This Court is of the opinion that necessary ingredients of offence under Section 306 IPC are not made out against petitioner with the result that the present petition deserves to be and is hereby allowed.
(16) Accordingly, the impugned FIR as well as charge sheet in connection with Crime No.466 of 2021 registered at Police Station Hazira, District Gwalior for offence under Section 306, 34 of IPC and other subsequent criminal proceedings initiated thereof are hereby 14 quashed. As a consequence thereof, petitioner is discharged from charge of Section 306, 34 of IPC.
A copy of this order be communicated to the concerned Trial Court and also to the police station concerned.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.07.05 17:47:40 +05'30'