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2012 DIGILAW 320 (PAT)

Atul Rao, S/o Braj Bhushan Rao v. State of Bihar

2012-02-24

VIKASH JAIN

body2012
Order (Per: Hon'ble Mr. Justice Vikash Jain) The present application has been filed for quashing the order dated 16.1.2010 passed by the learned Chief Judicial Magistrate, Motihari, East Champaran in Chhatauni P.S. Case No. 46 of 2008 by which cognizance has been taken under Section 306 of the I.P.C. 2. According to the Fardbayan of the informant Jeetendra Kumar Thakur, recorded on 19.4.2008, one Pankaj Kumar booked room no. 202 at Puja Hotel on 18.4.2008 at 9.30 p.m. The next day it was found that the said Pankaj Kumar had committed suicide by hanging himself from the ceiling fan. A suicide note was found in which it was stated that Atul Rao, the petitioner herein, and Brij Kishore Singh had been regularly pressurizing him for money, when in fact the deceased had not taken the money. The petitioner and Brij Kishore Singh created so much pressure that the deceased took the extreme step of committing suicide. 3. It appears that during the course of investigation the police has found from independent witnesses that the deceased Pankaj Kumar had taken Rs. 4,00,000/from the petitioner on the pretext of ensuring the petitioner's admission in Lal Bahadur Shastri Institute of Management at Delhi. 4. It has further come during investigation that one such independent witness, Rakesh Kumar, had interacted with the petitioner and the deceased and had been a witness to an agreement signed by the deceased whereby the latter had stated that he had taken money and would repay the same on 30.4.2008. 5. Learned counsel for the petitioner, Mr. Mrigank Mauli, submits that the impugned order of cognizance is liable to be quashed as having been passed without due application of mind. In the absence of the very ingredients of Section 306 I.P.C. not having been fulfilled, a prima facie• case thereunder could not be said to have been made out against the petitioner. It has been contended by the learned counsel for the petitioner that the specific ingredients of Section 306 read with Sections 107 and 108 are not fulfilled in the present case and as such there can be no question of proceeding against the petitioner for abetment of suicide. 6. For the sake of ready reference, the relevant provisions of Section 306 read with Sections 107 and 108 are being reproduced hereunder:- 306. 6. For the sake of ready reference, the relevant provisions of Section 306 read with Sections 107 and 108 are being reproduced hereunder:- 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. 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. 108. Abettor.-A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1.- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2.- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. 7. Learned counsel for the petitioner submits' that the significance of the term "that thing" as. appearing in all three limbs of Section 107 cannot be overemphasized and constitutes the sine qua non of abetment of an offence. In 'other words, the petitioner in the present situation could not be viewed as having abetted suicide unless he actually instigated or conspired or aided in the commission of suicide itself. 8. appearing in all three limbs of Section 107 cannot be overemphasized and constitutes the sine qua non of abetment of an offence. In 'other words, the petitioner in the present situation could not be viewed as having abetted suicide unless he actually instigated or conspired or aided in the commission of suicide itself. 8. He further submits that in the present case, however, the highest that has been alleged against the petitioner is that he had pressurized the deceased for repayment of his money and there is not even a whisper that he had in any manner contributed by any act or omission of his part in the commission on suicide by the deceased. By no stretch of imagination, therefore, can it be said that he had abetted suicide merely by demanding repayment of money. 9. Learned counsel for the petitioner has further relied on a number of decisions of various Courts including the Apex Court in support of his submissions. 10. In 2002(5) SCC 371 (Sanju @ Sanjay Singh Sengar vs. State of M.P.), it was held that even though the appellant therein did tell the deceased "to go and die", that is itself did not constitute the ingredients of instigation though the term denotes incitement or urging to do some drastic or inadvisable action. It was further observed that the presence of mens rea is a necessary concomitant of instigation. A similar view was expresseo in 2005 Cr.L.J. 4322 (Ker.) (Cyriac & Anr. VS. Sub-Inspector of Police) where after explaining the meaning of the term "instigation" as having physical as well as mental connotations by way of goading or urging, it was held that by merely telling a person in public "Why are you remaining as a burden to earth, Why can't you go and die?", the accused could not be said to have abetted the deceased in committing suicide. In 1995 Cr.L.J. 3066 (Raj.) (Manish Kr. Sharma vs. State of Rajasthan) it was held that that there can be no abetment if mens rea was missing. 11. Merely asking for repayment of money or return of articles has been held not to constitute the offence of abetment to commit suicide. This view has been held in (i) 1995 Cr.L.J. 893 (M.P.) (Vedprakash Bhaiji vs. State of Madhya Pradesh), (ii) 2005 Cr.L.J. 4322 (Ker.) (Cyriac & Anr. VS. Sub Inspector of. 11. Merely asking for repayment of money or return of articles has been held not to constitute the offence of abetment to commit suicide. This view has been held in (i) 1995 Cr.L.J. 893 (M.P.) (Vedprakash Bhaiji vs. State of Madhya Pradesh), (ii) 2005 Cr.L.J. 4322 (Ker.) (Cyriac & Anr. VS. Sub Inspector of. Police), (iii) 2006 Cr.L.J. 3123 (Bom.) (Avinash J. Mahale & Ors. vs. State of . Maharashtra). 12. Learned Senior Counsel Mr. Akhileshwar Prasad Singh appears on behalf of the father of the deceased (opposite party no. 2) in response to notices issued. He has vehemently opposed the petitioner's prayer for quashing of the cognizance order. He relies on the statements modifying his I.A. No. 633 of 2011 which has been treated as a counter affidavit on his request. He lays great emphasis on the tenor of the suicide note according to which the deceased committed suicide as a result of the mental pressure for which the petitioner and co-accused Braj Kishore Singh are fully responsible. 13. According to the respondent, the contents of the suicide note therefore by themselves fully establish the offence of abetment having been committed, resulting in the suicide of the deceased. He has also relied on the result of the police investigation and the entries in the voluminous case diary which, inter alia, contains statements of several different persons including Saurabh Jaiswal (the owner of Puja Hotel), Arjun Das (an employee of Puja Hotel) and the mother of the. deceased, etc., all of which print to the deceased having committed suicide owing to pressure exerted by the petitioner and the co-accused Braj Kishore Singh. 14. It has therefore been submitted that the petitioner had clearly created so much pressure on the deceased, so as to leave him with no other option but to commit suicide and the petitioner was therefore liable to be proceeded against for the offence of abetment of suicide. It was immaterial that the petitioner had not actually used any words to suggest that the deceased should commit suicide, and that the petitioner's conduct itself constituted "instigation" for the purpose of Section 306 I.P.C. 15. In support of his submission, learned counsel for the opposite party has relied on the following decision reported in (2009)16 see 605 (: 2009(4) PLJR (SC)174] [Chitresh Kumar Chopra vs. State (Govt. In support of his submission, learned counsel for the opposite party has relied on the following decision reported in (2009)16 see 605 (: 2009(4) PLJR (SC)174] [Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi)] and in particular in para 19 thereof which reads as follows:- As observed' in Ramesh Kumar*, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:- (i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilfful omission or conduct to m<;ike the deceased move forward more -:juickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the. manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation. 16. He has next submitted that in any event this is a very early stage wherein only cognizance has been taken on the basis of finding a prima facie case against the petitioner. He relies on the decision in 1996 Cr.L.J. 2448 (S.C.) (State of Maharashtra & Ors. vs. Som Nath Thapa & Ors.) to contend that the test of prima facie case has to be applied at the stage at which the court is required to consider the question of framing of charge and therefore the level of satisfaction at the stage of taking cognizance is of an even lower standard. He also relies on AIR 1971 SC 1389 (Balraj Khanna & Ors. VS. Moti Ram) for the same proposition. 17. By order dated 3.2.2011, this Court had called for the case diary which was subsequently received. I have gone through the same and perused the text of the suicide note as appearing in para 3 thereof as well as several other paragraphs including para nos. 56, 75 and 79 which have a material bearing on the case. I have also perused paras 22 and 24 which have been relied upon by the O.P. No.2. 18. I have gone through the same and perused the text of the suicide note as appearing in para 3 thereof as well as several other paragraphs including para nos. 56, 75 and 79 which have a material bearing on the case. I have also perused paras 22 and 24 which have been relied upon by the O.P. No.2. 18. After hearing the learned counsel for the parties and on consideration of the materials on record, 1 am not inclined to interfere in the matter at this stage. I am in agreement with the submissions of the learned counsel for the opposite party no. 2 that the order of cognizance has to be tested on the touchstone of a prima facie case being made out against the petitioner without delving into the detailed evidences and the defense of the accused. 19. It is no doubt true that on the surface, there appears to be little material to suggest that the petitioner had directly uttered any word to incite or exhort the deceased to commit suicide. 20. However, considering the tenor of the suicide note itself, it remains to be adjudicated on the basis of evidence whether or not the mental pressure experienced by the deceased for which the petitioner and Braj Kishore Singl; 1 were stated to be responsible was sufficient enough to leave the deceased with little option but to take the extreme step thus instigating the act of suicide and bringing the case within the ambit of Section 107 I.P.C. 21. The extent of the mental pressure caused no doubt is a subjective state of mind of the victim which one may only attempt to gauge after weighing the evidences and on taking account of the attendant facts and circumstances of the case. 22. In my view, therefore, the benefit of the decisions relied upon by the learned counsel for the petitioner for the principle that mere demand for repayment of money does not amount to instigation, cannot be given at this premature stage, 23. I am thus not inclined to interfere with the impugned order dated 16.1.2000 taking cognizance against the petitioner and others under Section 306 I.P.C. after finding a prima facie case thereunder on the basis of the available materials on record, as I do not find any illegality therein. 24. This petition accordingly stands dismissed.