Pranay Verma, J
1. This petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner/accused for quashment of FIR No.921/2020 for the offence punishable under Section 306/34 of the IPC at Police station Chandan Nagar, District Indore and the final report filed in connection with the said FIR.
2. As per the prosecution, on 27.06.2020 deceased namely; Gopal Mandhania committed suicide by hanging himself. On his death. a merg was registered and investigation was commenced during the course of which a suicide note in handwriting of the deceased was recovered. The statements of various witnesses were also recorded. From the aforesaid, it transpired that the deceased had entered into monetary transactions with several persons and was liable to make payment to some of them and was to receive payment from few of them. The petitioner had been harassing the deceased in respect of recovery of the amount from him. On account of harassment having been meted out to him by petitioner as aforesaid, the deceased eventually committed suicide. On completion of the investigation, the charge sheet has been filed by the Police before the Court concerned.
3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in the case. The entire allegations as leveled against the petitioner even if taken to be true at their face value do not amount to an offence punishable under Section 306/34 of the IPC. There is no allegation against the petitioner of either instigating or abetting the deceased in any manner to commit suicide and it cannot be said that due to act of the petitioner the deceased had no other option but to commit suicide. He had various other legal remedies available to him.
4. The act alleged against the petitioners is only to the effect that the deceased had entered into monetary transactions with several persons and was liable to make payment to some of them and was to receive payment from few of them. The petitioner had been harassing the deceased in respect of recovery of the amount from him. The same cannot in any manner be said to be abetment or instigation or even a remote cause for the deceased to commit suicide. It is hence submitted that the FIR registered against the petitioner be quashed.
5. Per contra, learned counsel for the respondents/State has submitted that there is sufficient material available on record to proceed against the petitioner and it cannot be said that no offence whatsoever is made out in view of which the petition deserves to be dismissed.
6. I have heard the parties at length and have perused the record.
7. Section 107 of IPC makes it obligatory for the prosecution to show and establish the element of instigation. The Apex Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh (AIR 2002 SC 1998), has opined as under :-
"13. ... Even if we accept the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. 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. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion.”
8. In the case of Sanju (supra), the accused allegedly told the deceased ‘to go and die’. Yet Apex Court opined that it does not constitute the ingredient of ‘instigation’. In the instant case, if story of prosecution is read and believed as such, it will be clear that from the aforesaid that the deceased had entered into monetary transactions with several persons and was liable to make payment to some of them and was to receive payment from few of them. The petitioner had been harassing the deceased in respect of recovery of the amount from him.
9. The ancillary question is whether his acts fall within the ambit of Section 306 of the IPC. In Gangula Mohan Reddi V/s. State of Andhra Pradesh 2010 (1) SCC 750 the Apex Court opined as under :
"17. 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 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 this act must have been intended to push the deceased into such a position that he committed suicide."
10. The principle flowing from this judgment is that the overt act of accused person must be of a nature where the victim had no option but to commit suicide. Even assuming that the petitioner had given money to third person at the behest of the deceased and was demanding back the amount and the interest payable thereon, it will not fall within the ambit of "incitement" or "instigation".
11. This Court in Hukum Singh Yadav V/s. State of M.P. reported in ILR (2011) MP 1089 considered the judgment of Supreme Court in Sanju @ Sanjay Singh Senger and held as under :-
"10. Considering these legal aspect this is to be observed that whether applicants have had same knowledge that deceased would commit suicide. As per the prosecution case when deceased was going with his father. Applicants restrained deceased and his father Jagdish and abused and threatened both of them, hence it cannot be assumed that applicants had knowledge that one of them particularly deceased will commit suicide. When act of abusing and threatening was alleged to be done with deceased as well as his father, so it cannot be said that applicants had knowledge or intention that deceased should commit suicide. There is no evidence that they provoked, incited or encouraged deceased to commit suicide. It is also not alleged that when applicants threatened to kill deceased and his father Jagdish they were armed with some weapons. So it cannot be presumed that deceased was so frightened that he had no option left except committing suicide and was compelled to do so."
12. The act of the petitioner in the opinion of this Court does not attract Section 306 of IPC. In absence of establishing necessary ingredients for attracting Section 306 of IPC, petitioner cannot be compelled to face the trial unnecessarily.
13. In view of the aforesaid analysis the initiation and continuation of proceedings against the petitioner would be a gross abuse of the process of law. The entire allegations leveled against the petitioner even if accepted to be true at his face value do not show commission of any offence by him. Consequentially, the petition deserves to be and is hereby allowed and the FIR registered under Section 306/34 of IPC vide Crime No.921/2020 at Police Station Chandan Nagar, District Indore in so far as it relates to the petitioner is hereby quashed.
