Madhya Pradesh High Court
Ballu @ Rajendra Singh vs The State Of Madhya Pradesh on 13 February, 2017
M.Cr.C. No.13831/2016
1
(Bablu@Rajendra Singh & Ors. Vs. State of M.P.)
13.02.2017
Shri Vilas Tikhe, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent/State.
Shri Suresh Agarwal, counsel for the complainant. With the consent of the parties, the case is heard finally.
This petition under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.458/2016 registered by police station Narwar, District Shivpuri under Section 306 of IPC.
The necessary facts for the disposal of the present application are that on 04.11.2016 FIR was registered against the applicants for offence punishable under Section 306 of IPC. It is mentioned in the FIR that an information was received on 15.09.2016 to the effect that the deceased Madhav has committed suicide by hanging himself. It was mentioned in the information/complaint that on 14.09.2016 Bablu Rawat had stolen petrol from the moter-cycle of his elder brother Madhav, as a result of which, Madhav Rawat after consuming the liquor was abusing Bablu Rawat and others, and at that time the applicants assaulted his elder brother Madhav. The dispute was pacified but at about 1:30 in the afternoon his elder brother Madhav committed suicide by hanging himself. The statement of the witnesses were recorded and on the basis of the statement of all the witnesses, police registered the FIR on 04.11.2016 for offence under Section 306/34 of IPC.
M.Cr.C. No.13831/2016 2This petition was filed for quashing of the FIR. However, it appears that during the pendency of this petition, the charge-sheet has also been filed. It is contended by the counsel for the applicants that even if the entire prosecution allegations are accepted even then it would not mean that the applicants have committed any offence punishable under Section 306 of IPC. There was no abetment or instigation on the part of the applicants and no inference can be drawn against the applicants of having abetted the deceased to commit suicide. The incident took place on trivial issue and even according to the prosecution, the deceased under the influence of alcohol was abusing the applicant No.1 and therefore, he was assaulted/beaten by the applicants. It is further submitted that even in the postmortem report except the ligature mark over the neck, no other bodily injury was found which clearly shows that the assault which was alleged to have been by the applicants was not serious, as no other external injury was found.
Per contra, the counsel for the respondent submitted that as the charge-sheet has been filed and, therefore, the applicants can raise all the arguments before the trial Court and, this Court should not exercise its power under Section 482 of Cr.P.C.
Heard counsel for the parties.
It is well established principal of law that where alternative efficacious remedy is available then this Court should normally refrain itself in exercising the powers under Section 482 of Cr.P.C. However, when the allegations which have been alleged against the applicants M.Cr.C. No.13831/2016 3 even prima facie do not make out an offence then powers under Section 482 of Cr.P.C. can always be exercised. Thus, merely because the applicants have an opportunity of arguing the matter at the time of framing of charges, it cannot be a ground to dismiss the petition under Section 482 of Cr.P.C.
Now moot question for determination is that whether on the basis of allegations made in the FIR as well as in the case diary statement of the witnesses, an inference can be drawn that whether the applicants had instigated/abetted the deceased to commit the suicide ?
Section 306 of I.P.C. 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. "Abetment" is defined under Section 107 of I.P.C. 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 M.Cr.C. No.13831/2016 4 attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
The Supreme Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in (2009) 16 SCC 605 while dealing with the term "instigation" held as under :
"16. ... 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. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by 'goading' or 'urging forward'. The dictionary meaning of the word 'goad' is 'a thing that stimulates someone into action; provoke to action or reaction' ... to keep irritating or annoying somebody until he reacts...."
The Supreme Court in the case of Praveen Pradhan Vs. State of Uttaranchal reported in (2012) 9 SCC 734 held as under :
"17. The offence of abetment by instigation depends upon the intention of the person M.Cr.C. No.13831/2016 5 who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh ((1991) 3 SCC 1), Surender v. State of Haryana ((2006) 12 SCC 375, Kishori Lal v. State of M.P. ( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC
554)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case.
No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC."
The Supreme Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC 371 has held as under :
"6. Section 107 IPC defines abetment to mean that 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, M.Cr.C. No.13831/2016 6 and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing."
Further, in para 12 of the judgment, it is held as under:
"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation."
Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.
If the facts of the present case are considered, then it would be clear that one day prior to the incident, the applicant No.1 had stolen petrol from the moter-cycle of the deceased. On the next date, the deceased under the influence of alcohol was abusing the applicant No.1. It is alleged that at that time the applicants gave a beating to the deceased and thereafter, deceased committed suicide. By no stretch of imagination it can be said that the applicants by their conduct had in any manner abetted or instigated the deceased to commit suicide. Merely, because the deceased appears to be hyper sensitive and was not able to tolerate that he was beaten by the applicants, by itself is not sufficient to hold that the applicants had in any manner abetted or instigated the deceased to commit suicide.
Considering the entire allegations which have been made against the applicants, this Court is of the view that M.Cr.C. No.13831/2016 7 the applicants have not abetted the deceased to commit suicide.
The Supreme Court in the case of State of Haryana and Ors. Vs. Bajan Lal & Ors. reported in 1992 Supp (1) SCC 335 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 formulate 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 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 M.Cr.C. No.13831/2016 8 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."
The Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :
"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this M.Cr.C. No.13831/2016 9 Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or M.Cr.C. No.13831/2016 10 any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.M.Cr.C. No.13831/2016 11
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the M.Cr.C. No.13831/2016 12 offence."
Thus, even if the entire allegations are accepted as true, this Court is of the considered view that no offence punishable under Section 306 of IPC is made out against the applicants. Hence, the FIR as well as the consequential proceedings including the charge-sheet filed against the applicants are hereby quashed.
This petition succeeds and is hereby allowed.
(G.S.Ahluwalia) Judge Sha