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Madhya Pradesh High Court · body

2014 DIGILAW 1543 (MP)

Ramsevak Shivhare v. State of M. P.

2014-11-26

S.K.PALO

body2014
JUDGMENT : S.K. Palo, J. These applications (M.Cr.C. No. 4069/2014 and M.Cr.C.No.4098/2014) under Sections 482 of Cr.P.C. for invoking the inherent power of this Court seeking quashment of F.I.R. No.89/14 dated 31.3.2014 registered at Police Station G.R.P. railway, Gwalior. 2. Regard being had similitude in the controversy involved in the matter, the above mentioned cases were heard analogously and a common order is being passed. 3. Regard being had similitude in the controversy involved in the matter, the above mentioned cases were heard analogously and a common order is being passed. 4. Briefly stated the facts necessary for disposal of the petitions are Anushri Gupta, sister of the deceased Anuraj Gupta married to Sumit Raj Shivhare, the son of petitioners Ramsevak Shivhare and Smt. Shashi Shivhare and the brother of petitioner Neha Shivhare (after marriage Neha Dixit). Allegedly, Anushri Gupta was being harassed by her in-laws. They were demanding dowry and the same could not be fulfilled by her mother who is a widow and her brother Anurag Gupta. Anurag Gupta leaving a suicide note and allegedly committed suicide in the Rairu Railway crossing. The suicide note was recovered from his pocket which reads as follows:- 5. In the suicide note it is mentioned that Anurag Gupta allegedly committed suicide because of demand of dowry and the harassment and cruelty being inflicted to his sister Anushri. This cruelty and harassment to his sister could not be tolerated by him, hence, he committed suicide. He requested to take legal action against these persons responsible for the mental and physical harassment. 6. Police G.P.P. Gwalior, registered Crime No. 82/14 under Section 306 of IPC against Sumit Raj, the husband of Anushri Gupta and petitioner Ramsevak (father-in-law) petitioner Shashi Shivhare (mother-in-law) and petitioner Neha (sister-in-law) for allegedly abetting the suicide of Anurag Gupta. 7. On behalf of the petitioners, it is argued that the petitioners have not abetted suicide of Anuraj Gupta. The suicide of Anurag Gupta in any circumstances cannot be held to be a suicide abetted by the petitioners. Therefore, the F.I.R. lodged against the petitioners be quashed. 8. Learned Public Prosecutor for the State has opposed the application on the ground that the petitioners demanded 15,00,000/- rupees as dowry from Anushri Gupta. Her brother deceased Anurag Gupta and mother Usha Gupta could not fulfill the same, therefore, she was driven away from the matrimonial home. Therefore, the F.I.R. lodged against the petitioners be quashed. 8. Learned Public Prosecutor for the State has opposed the application on the ground that the petitioners demanded 15,00,000/- rupees as dowry from Anushri Gupta. Her brother deceased Anurag Gupta and mother Usha Gupta could not fulfill the same, therefore, she was driven away from the matrimonial home. Since last five months, she had been staying at her maternal home. Her in-laws refused to accept her till the demand of dowry is not fulfilled. The dowry demand was to be fulfilled by her brother deceased Anurag, he failed to do so and unable to see the pains and suffering of his sister Anushri Gupta, hence committed suicide. Therefore, the petitioners are liable for their crime. 9. At this juncture, it would be appropriate to understand the provision of Section 306 of IPC which reads as under:- "Section 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. It also necessary to make the position clear as to what actually is abetment. Abetment has been defined under Section 107 of IPC which reads as follows:- "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 doding 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 willful misrepresentation, or by willful 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." 11. 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." 11. Though, it is alleged that suicide note which is alleged to have been received by the prosecution from the pocket of the deceased has not been examined by the handwriting expert. Presuming that the suicide note has been written by the deceased Anurag Gupta. The present case can be analyzed. 12. In certain similar cases where the Hon'ble the High Court and Supreme Court have decided would be rendered helpful in this case to understand the word "abetment of suicide ". In Ram Naresh and Another Vs. State of M.P. and Others, (2002) 2 MPLJ 360 , in which it is held that, "The accused persons were charge-sheeted under Section 306 read with Section 34 of Indian Penal Code on the basis of a suicide note left by the deceased in which he had blamed all the five accused and held them responsible for his (suicidal) death. However, it was found that none of the accused had goaded or urged forward, provoked, incited or urged or encouraged the deceased to commit suicide. They merely goaded him to refund/repay the amount of loan advanced by them to him. They never intended that the deceased should commit suicide. Moreover, the deceased could have lodged a report against accused who had allegedly tortured him and threatened him to kill. May be, as it sometimes happens, the police officials might have declined to record the report. In that case, he could have moved higher officials. But instead of taking this legal and legitimate action, the deceased adopted an escapist course of committing suicide in order to take revenge from his alleged tormentors. No case for alleged commission of the offence was made out against the accused persons." 13. In a similar case reported as Sanju @ Sanjay Singh Sengar Vs. But instead of taking this legal and legitimate action, the deceased adopted an escapist course of committing suicide in order to take revenge from his alleged tormentors. No case for alleged commission of the offence was made out against the accused persons." 13. In a similar case reported as Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, (2002) 5 SCC 371 , it is held that, "A. Penal Code, 1860-S. 107 Firstly-Ingredients- Instigating a person to do a thing--Held, " instigate " denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite - Presence of mens rea is the necessary concomitant for instigation -Words uttered in a quarrel or on the spur of moment, such as "to go and die" cannot be taken to be uttered with mens rea. B. Penal Code, 1860 -S. 306 r/w S. 107-- Abetment of suicide-- Quarrel taking place between appellant and deceased in which appellant was said to have told the deceased "to go and die" -- Deceased found dead two days later - Held, suicide was not proximate to the quarrel though the deceased was named in the suicide note - Hence suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and die." 14. In Madan Mohan Singh Vs. In Madan Mohan Singh Vs. State of Gujarat and Another, (2010) 8 SCC 628 , it is held that, "Indian Penal Code, 1860 - Sections 306 and 294 - Appeal against the HC's judgment dismissing the petition filed by the accused/appellant u/s 482 of Cr.P.C. challenging the F.I.R. which was filed by the widow of the deceased, who was working under the appellant as a driver - There is absolutely nothing in the suicide note or the F.I.R. which would even distantly be viewed as an offence much less u/s 306 of IPC - Nothing could be found in the F.I.R. or in the so-called suicide note which could be suggested as abetment to commit suicide-In fact, there is no nexus between the so-called suicide and any of the alleged acts on the part of the appellant - In so far as Section 294(b), I.P.C. Is concerned, no single word could be found in the FIR., or even in the so-called suicide note, which amounts to a proper complaint for the offence -As per the law laid down in 1992 Suppl. 1 Section 335, it would be only proper to quash the F.I.R. and further proceeding order of the High Court set aside, petition filed by the appellant/accused u/s 482 of Cr.P.C. allowed, questioned proceedings quashed and appeal allowed." 15. This Court has gone through the suicide note which is in the Police diary. Even if the suicide note is accepted as true as no ingredients of Section 306 IPC could be spelt out from the same. I have gone through the FIR as well. The so called suicide note even if the deceased had complained about the harassment of his sister is accepted as it is. Even if the deceased committed suicide because of the so called harassment caused to his sister, merely because a person committed suicide on account of the harassment caused to his sister it would still not be proper for framing the charge under Section 306 IPC. It will still for sought of a proper allegation. It cannot be viewed as proper allegation against the petitioners to the effect that the petitioners had intended or engineered the suicide of Anurag Gupta. The present FIR is put on this test it fails shot. 16. In the case of M. Mohan Vs. It will still for sought of a proper allegation. It cannot be viewed as proper allegation against the petitioners to the effect that the petitioners had intended or engineered the suicide of Anurag Gupta. The present FIR is put on this test it fails shot. 16. In the case of M. Mohan Vs. The State represented by The Deputy Superintendent of Police, (2011) 3 SCC 626 , Hon'ble Apex Court has held that, "Indian Penal Code, 1860-Section 306-- Abetment-- Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing - Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Indian Penal Code, 1860 -Section 306 - Required on 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/ she committed suicide" 17. In this context if the allegations made in the FIR in its face value also does not constitute the offence under Section 306 IPC. 18. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose triable offence there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not get protracted. The Hon'ble Apex Court has opined so in the case of Satish Mehra Vs. State of N.C.T. of Delhi and Another, AIR 2013 SC 506 , and another in which it is held that:- "(A) Criminal P.C. (2 of 1974), S. 482- Quashing of criminal proceedings - Power as to - Extra-ordinary in nature- Failure of allegations made to make out offence-Core basis on which power is recognized as inherent in High Court - such power is exercisable at threshold as well as at advanced stage of trial." 19. In the case of State of Haryana Vs. Bajan Singh reported as (1992) Suppl. In the case of State of Haryana Vs. Bajan Singh reported as (1992) Suppl. 1 SCC 335, the Hon'ble Apex Court has made it clear that it may not be possible to laid down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list to 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 Sections 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 accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on 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 grounds 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 proceedings 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 malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit him due to private and personal grudge". 20. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit him due to private and personal grudge". 20. Therefore, exercising the powers under Section 482 of Cr.P.C., the F.I.R which is inherently improbable on the basis of which no prudent persons can even reach a just conclusion that there is sufficient grounds for proceeding against the petitioners under Section 306 IPC. It is quashed to the extent of the petitioners and to the extent of Section 306 IPC only. However, it is made clear that as regarding Sumit Raj, this order will not be applicable and it is further made clear that the investigation agency is at liberty to proceed for any other offences if made out against the petitioner. 21. With the aforesaid, these petitions are disposed of.