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2016 DIGILAW 700 (MP)

Amar Jeet Singh Anand v. State Of M. P.

2016-08-16

S.K.PALO

body2016
ORDER : Mr. Paritosh Trivedi, learned counsel for the applicant. Ms. Surabhi Nigam, learned Deputy Government Advocate for the respondent/State. Heard. This petition under section 397 read with section 401 of the Code of Criminal Procedure has been filed to assail the order dated 25-4-2016 passed by learned second Additional Sessions Judge, Mandla in ST No. 63/2016 whereby charge has been framed under section 306 of the Indian Penal Code against the petitioner. 2. Brief facts, just necessary for disposal of the revision are that, Manorama Kacchawaha died due to burn injuries. Before her death, she left two suicide notes, one addressed to the police and other addressed to her family members. According to the prosecution case, she had obtained certain loan from the petitioner accused. She received two notices from the petitioner/accused. Since then, she was in tension. The accused petitioner created pressure on her for demand of his money and because of the pressure, Manorama committed suicide. Crime has been registered by police station Mandla for offence under section 306 of the Indian Penal Code. After investigation, charge-sheet has been filed and the same has been committed to the Court of Session. Second Additional Sessions Judge, Mandla framed charge under section 306 in ST No. 63/2016. 3. Learned counsel for the petitioner argued that loan was advanced to the deceased and the deceased executed a cheque in lieu of the loan. As the deceased did not pay the amount, notices were given and a complaint case has been filed before the Judicial Magistrate First Class, Mandla. It is further submitted that the deceased was also threatened by the petitioner accused to implicate her in a false case. Therefore, the petitioner accused had given a written complaint to the Superintendent of Police, Mandla on 15-5-2015. He further claimed that in the dying declaration also she has accepted that the petitioner accused is demanding his loan amount, no specific allegation of any harassment is mentioned. 4. Per contra, learned Deputy Government Advocate for the State opposed the petition by referring incriminating statement made by the witnesses and submitted that the impugned order framing charge is well merited and does not warrant any interference. 5. Perused the record. 4. Per contra, learned Deputy Government Advocate for the State opposed the petition by referring incriminating statement made by the witnesses and submitted that the impugned order framing charge is well merited and does not warrant any interference. 5. Perused the record. The first dying declaration of the deceased was addressed to the police which reads as follows : The second dying declaration written by the deceased addressed to her family members is as under : 6. The petitioner accused has filed a criminal complaint case No. 1275/2015 against the deceased Manorama Kachchawaha on 12-5-2015 before the JMFC, Mandla. Certified copy of the same has been filed. In the aforesaid case, the deceased was granted bail on 8-10-2015. The trial in the criminal case is pending. A letter to the Superintendent of Police dated 15-5-2015 written by the accused petitioner also shows that he intimated the Superintendent of Police that the deceased obtained the loan from him but the same was not repaid. On demand being made, the deceased Manorama threatened the petitioner accused for implicating him in a false case of outraging her modesty. Certified copy of the charge-sheet of criminal case is annexed to substantiate the statement made by learned counsel for the petitioner. 7. The question in the present case is whether considering and accepting the entire material available on record as absolutely correct, a prima facie case for framing charge under section 306 of the Indian Penal Code is made out? At this juncture, it would be appropriate to understand the provision of section 306, Indian Penal Code which is as follows : “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.” It is also necessary to understand what actually constitute “abetment” as defined under section 107 of the Indian Penal Code as follows : “107. Abetment of a thing. 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 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.” As per definition of section 107, 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. A person is said to “instigate” another to act, when he actively suggests or stimulates him to act by any 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. 8. In the present case, the petitioner accused has demanded the amount of loan advanced by him failing which he filed a criminal case for offence under section 138 of the Negotiable Instruments Act. The same cannot be equated with “instigating” or “provoking the deceased to commit suicide”. It may be possible that the deceased took such a step because she could not resist the pressure of repaying the loan and committed suicide. 9. The same cannot be equated with “instigating” or “provoking the deceased to commit suicide”. It may be possible that the deceased took such a step because she could not resist the pressure of repaying the loan and committed suicide. 9. In the case of Radhesyam vs. State of M.P., 2014 (3) MPHT 103 it has been held as under : “Criminal Procedure Code, 1973, section 397-401 — Order of framing charge under section 306, Indian Penal Code — No evidence of abetment to commit suicide — Money borrowed by the deceased — Demanding back of money was not an act of harassment — Demand of loan amount is not an abetment under section 107, Indian Penal Code — Words uttered in heat of moment does not amount to abetment — Held — Order of framing charge is not sustainable and set aside.” 10. Similarly in the case of Ramchandra vs. State of M.P., 2009 (2) M.P.L.J. 147, the deceased committed suicide on account of playing dishonesty in a transaction of loan by the petitioner, it was held that the act as alleged against the petitioner does not amount to instigation nor constitutes aid in commission of the suicide by the deceased. Therefore, order framing charge against the petitioner for offence under section 306, Indian Penal Code was set aside. 11. In an earlier case of similar nature rendered in Vivek Kumar Jain vs. State of M. P., 2015 (1) MPHT 75 wherein it has been held that the accused advanced certain loan to the deceased which the deceased could not repay. The accused pressurised the deceased to repay the money. The deceased could not repay and committed suicide. In the above circumstances, it was held that the proceeding initiated under section 306, Indian Penal Code against the accused persons, therefore, liable to be quashed. 12. In the case of Chater Bai vs. State of MP, 2010(1) M.P.L.J. (Cri.) 690 it has been held as under : “Penal Code, S.306 — Abetment of suicide — From the statement made by the deceased in her dying declaration, no ingredients to make out offence under section 306 have been established by prosecution —Charge under section 306 quashed.” 13. In the case of Chater Bai vs. State of MP, 2010(1) M.P.L.J. (Cri.) 690 it has been held as under : “Penal Code, S.306 — Abetment of suicide — From the statement made by the deceased in her dying declaration, no ingredients to make out offence under section 306 have been established by prosecution —Charge under section 306 quashed.” 13. Keeping in view the above circumstances and on the analysis of the facts of the case and the legal aspects, in the opinion of this Court, ingredients of “abetting to suicide” is missing in the present case. Therefore, offence under section 306, Indian Penal Code against the petitioner accused is not made out. 14. In view of the preceding analysis, this revision is allowed. The impugned order dated 25-4-2016 is set aside.