Madhya Pradesh High Court
Subhash Yadav vs The State Of Madhya Pradesh on 10 February, 2017
M.Cr.C. No.10306/2016 1
M.Cr.C. No.10306/2016
10/02/2017
Shri Amit Rawal, learned counsel for the
petitioner.
Shri Rahul Vijaywargiya, learned Public
Prosecutor for the respondent/State.
Shri R.T. Thanewala, learned counsel for the objector.
This is a petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code') praying for quashment of F.I.R bearing crime no.627/2015 dated 03/09/2015, registered at police-station Madhav Nagar, District Ujjain for offences under Sections 306/34 of IPC and consequent proceedings taken up in S.T. No.128/2016, pending before the XI Additional Sessions Judge, Ujjain.
The learned counsel for the petitioner has invited the attention of this Court to order dated 31/08/2016 passed in Cr.R. No.1086/2016, whereby the charge with regard to offence under Section 306 of IPC in S.T. No.128/2016 was quashed, on a petition preferred by co-accused Dilip and Madhu Gupta. It is submitted by the learned counsel for the petitioner that on the basis of same allegations in the same case, trial for offence under Section 306 of IPC is still going on against petitioner Subhash Yadav. It is further submitted that this Court, after elaborate consideration of the merits, has arrived at a finding that necessary ingredients to constitute an offence under Section 306 of M.Cr.C. No.10306/2016 2 IPC are not available, therefore, continuation of proceedings against the petitioner in S.T. No.128/2016 amounts to abuse of process of the Court and therefore, the proceedings are liable to be quashed in exercise of inherent powers under Section 482 of 'The Code'. Reliance is placed on the decision of the apex Court in Prabhu Chawla v. State of Rajasthan and anr., AIR 2016 SC 4245.
Though the prayer is not opposed by the learned Public Prosecutor, however, the learned counsel for the objector, Asha Rani-wife of deceased Gyaneshwar Prasad Mittal, has strongly opposed the prayer for quashment. It is submitted that earlier, Cr.R. No.904/2016, preferred by the petitioner before this Court against the order of framing charge was dismissed, on 26/07/2016, as withdrawn, therefore, identical prayer for quashment cannot be entertained under Section 482 of 'The Code'.
Heard learned counsel for the parties and perused the record.
The law is well settled that the jurisdiction of this Court under Section 482 of 'The Code' is wide enough and that if the proceedings are going to result in abuse of process of the Court, then the high Court in exercise of powers under Section 482 of 'The Code' can quash such proceedings and nothing will come in the way. No doubt, the revision preferred by the petitioner against charge was dismissed as withdrawn by this Court vide order dated M.Cr.C. No.10306/2016 3 26/07/2016, however, thereafter another petition being Cr.R. No.1086/2016, filed by co-accused Dilip and Madhu Gupta was allowed by this Court vide order dated 31/08/2016 after elaborate consideration of factual and legal position obtaining in the matter. Relevant part of the order dated 31/08/2016 runs as under:
"As per prosecution, Gyaneshwar Prasad Mittal aged about 75 years residing at 72, Dussehra Maidan, Ujjain committed suicide on 27/08/2015 at around 1.30 a.m. inside his house by strangulation as a result of hanging. His wife Asha Rani also attempted to commit suicide. Merg was registered in this connection with police station Madhav Nagar, Ujjain. In enquiry, it was found that Madhu Gupta (petitioner no.2) and one Naveen Sethiya had entered into an agreement with Gyaneshwar Prasad Mittal (deceased) on 27/10/2011 for purchase of house no.72, Dussehra Maidan, Ujjain, belonging to Gyaneshwar Prasad Mittal (deceased) in which, the petitioners were residing as tenants, since 2002. The sale consideration of Rs.55.00 lakhs, as per the agreement, was to be paid in four installments. The petitioners had already paid an amount of Rs.41.25 lakhs against first three installments and forth installment was to be paid at the time of registration of sale deed.
As per prosecution, Gyaneshwar Prasad Mittal (deceased) and his wife Asha Rani had requested the petitioners many a times to pay the fourth installment and get the sale deed executed, however, they refused to pay the fourth installment, and further pressurised Gyaneshwar Prasad Mittal (deceased) to vacate his house. Allegedly, thereafter, almost three months prior to the incident, they suddenly vacated the house saying that they have handed over its possession M.Cr.C. No.10306/2016 4 to one Subhash Yadav, advocate so that he can manage to get it vacated from Gyaneshwar Prasad Mittal (deceased). It is further alleged that Subhash Yadav has opened an office in the premises and anti-social elements used to assemble there. Gyaneshwar Prasad Mittal (deceased) was also being obstructed from using common pathway and thus a lot of nuisance was being caused. It is alleged that the petitioners extended threats to Gyaneshwar Prasad Mittal (deceased) to vacate the house else his house hold belongings shall be thrown away from the house, due to which he committed suicide.
Learned counsel for the petitioner has submitted that the petitioner no.1 entered into a transaction of sale of house belonging to the deceased in a bonafide manner and that he regularly discharged his liability under the agreement by paying sale consideration in installments by cash or by R.T.G.S. It is further submitted that when the deceased was asked to execute the sale deed, he expressed his unpreparedness, therefore, repeated requests were made in this regard. It is also submitted that the deceased himself was unwilling to execute the sale deed and that prima-facie it cannot be said that petitioners have abated him to commit suicide. The petitioners cannot be held liable for abatement because no instigation, goading or suggestion to commit suicide, at any point of time, was made by them to the deceased.
Learned counsel for the petitioners has contended that even if all the allegations made against them by the prosecution are accepted at their face value, still, the case for abatement to commit suicide is not made out against them, because necessary ingredients to constitute 'abatement' as required under Section 107 of IPC are missing in as much as at no point of time, the petitioners have instigated the deceased by any M.Cr.C. No.10306/2016 5 act or illegal omission or have intentionally aided, provoked, incited or goaded him to commit suicide. Reliance in this connection is placed on judgment of apex Court in Sanju @ Sanjay Singh Sengar v. State of M.P., AIR 2002 SCC1998 equivalent to (2002)5 SCC 371.
Per contra, learned counsel for the respondent/State has drawn the attention of this Court to a document at page no.43, which is said to be a communication address to Inspector General of Police, said to have been written by Gyaneshwar Prasad Mittal (deceased), wherein he has stated that he entered into agreement for sale of his house in favour of the petitioners and that the petitioners were pressurising him to vacate the house and were also causing nuisance.
Learned counsel for the respondent has further submitted that petitioners were constantly threatening and pressurising Gyaneshwar Prasad Mittal (deceased) to vacate the possession of the house and that because of their persistent harassment the deceased had committed suicide. Heard the learned counsel for the parties and perused the record.
Section 306 of IPC provides punishment for abatement to commit suicide. Expression 'abatement' has been defined in Section 107 of IPC. In order to attract Section 306 read with 107 of IPC, the intention of the accused to aid or instigate or abate the deceased to commit suicide must be established. In the matter of Mahendra Singh v. State of M.P. 1995 Suppl(3)SCC731 considering the definition of 'abatement' under Section 107 of IPC, it was held that charge of an offence under Section 306 of IPC cannot be sustained merely on the allegation of harassment to the deceased. In the matter of Babbi @ Jitendra v. State of M.P., 2008(2) MPHT 160 considering a case under Section 306 read with Section 107 of IPC, it has been held as under by M.Cr.C. No.10306/2016 6 this Court:
"09. For making out an offence under Section 306 of Indian Penal Code, one essential and requisite ingredient is 'abetment' by the accused to deceased to commit suicide. Section 306 of Indian Penal Code 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.
10. As per definition given in Section 107 of the Indian Penal Code abetment is constituted by:
(i) Instigating a person to commit an offence; or
(ii) Engaging in a conspiracy to commit it; or
(iii) Intentionally aiding a person to commit it.
11. A person is said to 'instigate' another to an act, when he actively suggests or stimulates him to the act by means of language, direct or indirect, whether it takes the form of express solicitation, or of hints, insinuation or encouragement. The word 'instigate' means to goad or urge forward or to provoke, incite, urge or encourage to do an act. "M.Cr.C. No.10306/2016 7
In the instant case, allegations made against the petitioners are that they refused to pay fourth installment under the agreement to sale and rather handed over the tenanted premises to some advocate, who started causing harassment to Gyaneshwar Prasad Mittal (deceased). As a matter of fact, the deceased, at no point of time, has lodged any report with police with regard to the alleged transfer of possession by the petitioners to some other person. Apart that, even if it is accepted that the petitioners ilegally parted away with the possession of the tenanted premises, and handed over possession to some other person, who started causing nuisance by calling anti-social elements, the same cannot amount to abatement to commit suicide within the meaning of Section 107 of IPC, because no active inducement, instigation, suggestion to commit suicide can be deciphered from that.
Learned trial Court without properly considering the aforesaid facts and circumstances of the case and the relevant legal position has framed the charge in a mechanical manner, though prima-facie necessary ingredients to constitute an offence under Section 306 read with 107 of IPC were not available. Therefore, the impugned order framing charge against the petitioners for offence under Section 306 in alternate 306/34 is not sustainable and as such the petitioners are entitled to discharge."
Though, the learned counsel for the objector relying upon Moti Lal Songara v. Prem Prakash @ Pappu, a decision rendered by the Hon'ble apex Court on 16th May, 2013 in Cr. A. No.785 of 2013, has contended that the present petition preferred under Section 482 of 'The Code' is not maintainable, however, as laid down by apex Court in Prabhu Chawla's case (Supra) the M.Cr.C. No.10306/2016 8 jurisdiction conferred upon the high Court under Section 482 of 'The Code' is to prevent abuse of process of the Court or otherwise to secure the ends of justice, hence, there can be no total ban on the exercise of such wholesome jurisdiction, whether abuse of process of the Court excites the course of jurisdiction because the limitation is self restrained, but nothing more. In the instant case, as this Court on consideration of all relevant aspects of the case has taken a firm view that necessary ingredients to constitute offence under Section 306 of IPC are not available, therefore, continuation of proceedings in S.T. No.128/2016 against the petitioner regarding same will be nothing but abuse of the process of the Court and will also result in avoidable harassment of the petition. Therefore, in the considered opinion of this Court, it is a fit case for quashment of the proceedings.
Resultantly, the petition is hereby allowed. The proceedings pending before XI Additional Sessions Judge, against the petitioner are hereby quashed.
Certified copy as per rules.
(Ved Prakash Sharma) Judge sumathi