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4 Whether This Case Involves A … vs State Of Gujarat & on 15 February, 2017

                  R/SCR.A/71/2017                                             JUDGMENT




                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 71 of 2017


         FOR APPROVAL AND SIGNATURE:


         HONOURABLE MR.JUSTICE J.B.PARDIWALA
         ==========================================================

         1     Whether Reporters of Local Papers may be allowed
               to see the judgment ?

         2     To be referred to the Reporter or not ?

         3     Whether their Lordships wish to see the fair copy of
               the judgment ?

         4     Whether this case involves a substantial question of
               law as to the interpretation of the Constitution of
               India or any order made thereunder ?

         ==========================================================
                    CHIMANBHAI KHENGARBHAI MAHERIA....Applicant(s)
                                      Versus
                        STATE OF GUJARAT  1....Respondent(s)
         ==========================================================
         Appearance:
         MR DHRUV K DAVE, ADVOCATE for the Applicant(s) No. 1
         DS AFF.NOT FILED (N) for the Respondent(s) No. 2
         MS. PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
         ==========================================================
             CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
                               Date : 15/02/2017


                                     ORAL JUDGMENT

1. The respondent No.2, although served with the notice
issued by this Court, has chosen not to remain present either
in person or through an advocate and oppose this application.

2. Rule returnable forthwith. Ms. Pathak, the learned APP,

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waives service of notice of rule for and on behalf of the
respondent No.1-State of Gujarat.

3. By this application under Article 227 of the Constitution of
India, the applicant has prayed for the following reliefs;

“(A) Your Lordships may be pleased to admit and allow
the present writ application.

(B) Your Lordships may be pleased to allow an
application at Exh 24 for discharge of the applicant and
thereby to discharge the applicant from Sessions Case
No.145 of 2014 being FIR CR I-106 of 2014 registered
with Khatodara Police Station, Surat City;

(C ) Your Lordships may be pleased to quash and set
aside an order below Exh 24 on 28.10.2016 in Sessions
Case No.145 of 2014 being FIR CR I-106 of 2014
registered with Khatodara Police Station, Surat City
pending before the 6th Addl. Sessions Court, Surat and
appropriate directions sui8table as per the facts and
circumstances of the case;

(D) Pending hearing and final disposal of this petition,
by way of interim relief, Your Lordships may be pleased
to stay and order below Exh 24 on 28.10.2016 in
Sessions Case No.145 of 2014 being FIR CR I-106 of 2014
registered with Khatodara Police Station, Surat City
pending before the 6th Addl. Sessions Court, Surat.

(E) Pending admission, hearing and final disposal of
this petition to grant an ex-parte ad-interim relief in
terms of para 15(D);

(F) Any other relief deemed just and proper may please
be granted in the interest of justice.”

4. It appears from the materials on record that the son of
the respondent No.2, by name, Pradip N. Solanki was married
to one Varshaben. The applicant herein-original accused No.8
happens to be the uncle (Maasa) of Varshaben. It is the case of

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the respondent No.2-original first informant that his son, i.e.,
the deceased was being harassed incessantly by his wife
Varshaben and the relatives of Varshaben, which includes the
applicant herein.

5. The first informant, as the mother of the deceased, has
alleged that on account of incessant harassment at the end of
Varshaben and her relatives, her son took the extreme step of
committing suicide. At the end of the investigation, charge-
sheet was filed against eight persons for the offence
punishable under section 306 read with section 114 of the
Indian Penal Code.

6. The applicant herein preferred a discharge application
before the Trial Court, which came to be rejected vide order
dated 28th October, 2016. Being dissatisfied, the applicant has
come up with this application, invoking the supervisory
jurisdiction of this Court under Article 227 of the Constitution of
India.

7. In the course of the investigation, the Investigating
Officer recovered a suicide note left behind by the deceased. In
the suicide note, it has been stated as under;

“I am taking this extreme step due to continuous
harassment at the end of my in-laws. Past one and a half
years, my wife is at her parental home and whenever I
visited her parental home to bring her back to her
matrimonial home, she insisted for my undertaking in
writing. I had very petty disputes with my wife, on
account of which, she left her matrimonial home and has
gone back to a parental home, and she is now refusing to
come back at her matrimonial home. When I asked for
the custody of my son, my wife demanded an amount of
Rs.10,00,000/- from me and my family. At present, I am

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residing all alone at Surat. My parents have already
handed over my right of the share in the ancestral
properties. I have already taken cash from my parents
and, therefore, I am left with no other interest in their
estate. At present, I am unemployed. I have no job or any
business. I have lost all my money due to personal
expenses. My wife is having some amount given by my
parents, including the gold. My wife will shoulder the
responsibility to bring up my son as I have nothing to
contribute. The cause of my death is my in-laws and my
wife. They have blamed me wrongly by being at her
parental home.”

8. Thus, it appears that the deceased had matrimonial
disputes with his wife. It appears that the proceedings under
section 125 of the Cr.P.C for maintenance were also in
progress. It also appears that the wife had left her matrimonial
home past almost two years and was residing at her parental
home. In the wedlock, a son was born. The allegations against
the applicant herein are quite general. The applicant, being
one of the relatives of the wife of the deceased, he has also
been arraigned as an accused.

9. Ms. Pathak, the learned APP, pointed out that the
applicant herein appears to be the main culprit because, it is
he, along with the other relatives, used to harass the
deceased. Ms. Pathak has given one such instance by placing
reliance on the statements of three witnesses, wherein, in the
course of the proceedings of maintenance before the court
concerned, a huge amount was demanded from the husband,
i.e., the deceased. All these, according to the learned APP,
amounts to instigation, and such instigation led to the
commission of suicide and, therefore, they have abetted within
the meaning of section 107 of the Indian Penal Code.

10. I am afraid, it is not possible for me to accept such

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submission canvassed on behalf of the State.

11. In my view, the most important ingredient to constitute
the offence of abetment, i.e., mens rea is missing in the
present case. There might have been serious disputes between
the husband and wife, and on account of such disputes, the
relatives of the wife might have intervened, but that hardly
could be termed as an instigation within the meaning of
section 107 of the Indian Penal Code. It could not be said, by
any stretch of imagination, that the applicant herein intended
the consequences of the act.

12. The law in this regard is well settled. This Court in the
case of Lalitbhai Vikramchand Parekh vs. State of
Gujarat Ors., Special Criminal Application No.16032 of
2014, decided on 10th April, 2015, has exhaustively explained
what would constitute abetment within the meaning of section
107
of the Indian Penal Code so as to make the person liable
for the offence under section 306 of the Indian Penal Code. I
may quote the relevant observations as under;

“11. Abetment of suicide is made punishable by Section
306 which provides that “if any person commits suicide,
whoever abets the commission of such suicide, shall be
punished.” (emphasis supplied) The section does not
define the expression” “abet”, nor is the expression
defined in Chapter II of the Code which deals with the
general explanations”. However, Chapter V of the Code
incorporates an elaborate statement of “abetment”.
Section 107 in this Chapter defines “abetment of a
thing”, while Section 108 defines the expression
“abettor”. This is how these sections run : 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 doing of that thing, if

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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
facilitates the commission thereof, is said to aid the
doing of that act.”

12. Section 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.

Explanation 3.- It is not necessary that the person
abetted should be capable by law of committing an
offence, or that he should have the same guilty
intention or knowledge as that of the abettor, of
any guilty intention or knowledge.

Explanation 4.- The abetment of an offence being
an offence, the abetment also an offence.

Explanation 5.- It is not necessary to the
commission of the offence of abetment by
conspiracy than the abettor should concern the
offence with the person who commits it. It is

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sufficient if he engages in the conspiracy in
pursuance of which the offence is committed.”

13. As the expressions “abetment” and “abettor” have
been legislatively defined, the ordinary dictionary
meaning of the expressions would not be determinative
of their import. It may, however, be useful to have a look
at the ;dictionary meaning of the expression “abet”.
According to Webster, Webster’s Third New International
Dictionary Vol. I, the expression “abet”, means to incite,
encourage instigate, or countenance-now usually used
disparagingly. According to Wharton, Whartone’s Law
Lexicon, 14th ed., “abet” means to stir up or excite, to
maintain or patronize : to encourage or set on and the
“abettor” is an instigator or setter on, one who promotes
or procures a crime to be committed. Stroud, Stroud’s
Judicial Dictionary, 4th ed., has given various meanings
of the expression “aid” or “abet”, based on judicial
pronouncements in England, in the context of different
statutes. Thus, according to Hawkins, 51 L J.M.C. 78-R. v.
Coney, J., “To constitute an aider or abettor, some active
steps must be taken, by word or action, with intent to
instigate the principal or principals. Encouragement does
not, of necessity, amount to aiding and abetting. It may
be intentional or unintentional. A man may unwillingly
encourage another in fact by his presence, by
misinterpreted gestures, or by his silence or non-
interference-or he may encourage intentionally by
expressions, gestures, or actions, intended to signify
approval. In the latter case, he aids and abets; in the
former he does not.” Stroud also cites the case of Du
Cros v. Lambourne, 1907 (1) K. B. 40.. in which it was
held that “the owner in, and in control of, a motor car
which is being driven at an improper speed by a driver
who is not his servant, “aids or abets” in the offence if he
(the owner) does not interfere.” It is further noticed on
the basis of decision in the case of Rubie v. Faulkner,
1980 (1) K.B. 571 : “For a supervisor of a learner driver to
see that an unlawful act is about to be done and to fail to
prevent it is he can is for him to aid and abet.” It is
further noticed, on the authority of the decision in the
case of Callow v. Tillstone, 83 L.T. 411, that “A man does
not by negligence aid and abet a person to expose
unsound meat for sale.” It is further noticed, on the basis
of the decision in the case of Ackroyds Air Travel v.

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Director of Police Prosecutions, 1950 (1) All. E.R. 933 and
Thomas v. Lindop, 1950 (1) All. E.R. 966, that “If a person
knows all the circumstances which constitute the offence
he will be guilty of aiding and abetting whether he knew
that they did in fact constitute the offence or not ” Stroud
also quotes Lord Goddard C J. in Ferguson v. Weaving,
1951 (1) K.B 814, that “it is well know that the words ‘aid
and abet are apt to describe the action of a person who
is present at the time of the commission of an offence
and takes some part therein.”

14. It may be useful to refer to some of the early English
decisions, dealing with different ways of taking part in a
felony, it was recognised that a felony may be committed
by the hand of an “innocent agent” who, having no
blamable intentions in that he did, incurred no criminal
liability by doing it. In such a case, the man who
“instigates” this agent is the real offender; his was the
last mens rea that preceded the crime, though it did not
cause it “immediately but mediately”. “Thus, if a
physician provides a poisonous draught and tells a nurse
that it is the medicine to be administered to her patient,
and then by her administration of it the patient is killed,
the murderous physician-and not the innocent nurse-is
the principal in the first degree Kel. 52 (T.A.C.).” In
English Law, as it stood before the later developments, “a
principal in the second degree is one by whom the actual
perpetrator of the felony is aided and abetted at the very
time when it is committed; for instance, a car-owner
sitting beside the chauffeur who kills some one by over-
fast driving, or a passenger on a clandestine joy-riding
expedition which results in manslaughter 1930 (22) Cr,
App. R. 70 : 144 L.T. 185, “or bigamist’s second ‘wife’ if
she knows he is committing bigamy, or even be
spectators if they actively encourage such a contest even
by mere applause. “But a spectator’s presence at a prize-
fight docs not of itself constitute sufficient
encouragement to amount to an aiding and abetting
1882 (8) Q.B.D. 534.” It was also recognised that a man
may effectively “aid and abet” a crime and at the very
moment of its perpetration, without being present at the
place where it is perpetrated. “To be guilty of aiding and
abetting, a person must either render effective aid to the
principal offender or else must be present and acquiesce
in what he is doing. Before a person can be convicted of

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aiding and abetting the commission of an offence, be
must at least know the essential matters which
constitute the offence 1951 (1) All. E.R. 412(414).” “But
acquiescene sufficient to constitute the offence may be
established by evidence of the accused persons motive
and of his subsequent conduct 1951 (1) All. E.R. 464.”

In the category of “accessory before the fact” comes a
person who “procures or advises” one or more of the
principals to commit the felony. This “requires from him
an instigation so active that a person who is merely
shown to have acted as the stakeholder for a prize-fight
which ended fatally, would nut be punishable as an
accessory 1875 (2) C.C.R. 147.” “The fact that a crime
has been committed in a manner different from the mode
which the accessory had advised will not excuse him
from liability for it. But a man who has councelled a crime
does not become liable as accessory if. instead of any
form of the crime suggested, an entirely ‘different
offence is committed 1936 (2) All. E.R. 813.” Kenny,
Kenny’s Outlines of Criminal Law, New ed. by J.W.C.
Turner, p. 88, points out that it is not always easy to
decide whether or not the crime actually committed
comes within the terms of the “incitement.” so as to
make the inciter legally responsible for it. He further
observed that the courts in some of the older cases
tended
to “take a strict view of the facts” and refers by
illustration to the case of R. v. Saunders, Kel. 52 (T.A.C )
and Archer in 1578. referred to in Plowden.

15. For obvious, reasons an act of suicide is not penal
and even an unsuccessful attempt is not an offence now
after the deletion of section 309 of the Indian Penal
Code.. Suicide takes the victim or the perpetrator outside
the purview of penal consequences, even though the
common law in England at one time endeavoured to
deter men from this crime by the threat of degradations
to be inflicted upon the “suicide’s corpose”, which by a
natural, if unreasoning association of ideas, were often a
“potent deterrent”, and also by threatening the forfeiture
of his goods, a “vicarious punishment” which though
falling wholly upon his surviving family, was likely often
to appeal strongly to his sense of affection. Thus the man
who feloniously took his own life was at one time “buried

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in the highway”, with a stake through his body; and his
goods were “forfeited”. The burial of suicides lost its
gruesome aspect in 1824 when the original mode was
replaced by the practice of burial “between the hours of
nine and twelve at night”, without any service. In 1870,
the confiscation of the goods of suicides was put to an
end in the general abolition of forfeitures for felony. And
in 1882, the statute removed every penalty, except the
purely ecclesiastical one that the interment must not be
solemnised by a burial service in the full ordinary
Anglican form, Kenny’s Outlines of Criminal Law, New ed.
by J.W.C.,, Turner, p. 138.

16. Halsbury, in Halsbury’s Law of England, 4th -ed. paras
42 to 44 notices some of the English decisions in the
matter of classification of offence and complicity in the
crime. Thus, a person who ‘”assists the perpetrator at the
time of its commission, or if he assists or encourages the
perpetrator before its commission, was held liable 1970
(2) Q.B. 54.” According to R.V. Gregory (1867) L.R.I.
C.C.R. 77 “any person who aids, counsel or procures the
commission of an offence, whether an offence at
common law or by statute, and whether indictable or
summary, is liable to be tried and punished as a principal
offender.” Mere presence at the commission of the crime
is not enough to create criminal liability, nor is it enough
that a person is present with a secret intention to assist
the principal should assistance be required. Some
encouragement or assistance must have been given to
the principal either before or at the time of the
commission of the crime with the intention of furthering
its commission. Presence without more may, however,
afford some evidence of aid and encouragement. It is an
indictable offence at common law for a person to incite or
solicit another to commit an offence. For an incitement to
be complete, there must be some form of actual
communication with a person whom it is intended to
incite, where, however, a communication is sent with a
view to incite, but does not reach the intended recipient
the sender may be guilty of an attempt to incite.
Incitement is complete though the mind of the person
incited is unaffected and notwithstanding that person
incited intends to inform on the inciter ; but there can be
no incitement unless one person seeks to persuade or
encourage another Halsbury’s Laws of England, Paras 42

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to 44.

17. It may be useful to notice some of the Indian
decisions on the question of abetment. Among the early
cases of abetment of suicide arose out of unfortunate
incidents of Sati, which was common in India, at one
time. A person who induced the woman to return to the
pyre after she had once retired from it, and immolated
herself, was held to have abetted suicide 1863 (1) R.L.P.J.

174. Where a women prepared to commit suicide in the
presence of certain persons who followed her to the pyre,
stood by her and one of them told the women to say
‘Ram Ram’ and “She would became sati”, the facts were
held sufficient to prove the active connivance of these
persons and to justify the inference that they had
engaged with her in a conspiracy to commit suicide 1871
(3) N.W.P. 316; (1933) A.L.J.R. 7. Where the accused
prepared the funeral pyre, placed the victim’s husband’s
body over it, and did not use any force to prevent her
from sitting on the pyre and supplied her with ghee
which she poured over the pyre were found guilty of
abetment of suicide. Where a Hindu women was burnt in
the act of becoming sati, those who assisted her in taking
off her ornaments, supervised the cutting of her nails and
the dying of her feet, prepared the pyre on which she sat
herself and put the corpse upon the pyre, were all held
guilty of abetment of suicide. The defence that the
abettors were in fact “expecting a miracle and did not
anticipate that the pyre would be ignited by human
agency was rejected, 1928 (8) Pat. 74. Similarly, where
the accused, who were members of a crowd, who had
joined the funeral procession from the house of the
victim to the cremation ground, and were shouting “Sati
Mata Ki Jai” it was held that all those persons, who joined
the procession were aiding the widow in becoming sati
and were guilty of an offence under Section 306 of the
Penal Code, 1958 Cr. L J. 967, 1958 Raj. 143.

18. Some later decisions arising out of other instances of
instigation throw further light on the question. In the case
of Parimal Chatterjee and others A.l.R 1932 Cal. 760, a
Division Bench of the Calcutta High Court observed that
the word “instigate” literally means to goad or urge
forward or to provoke, incite, urge or encourage to do an
act. A person may however not only instigate another,

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but he may co-operate with him and his Co-operation –
may consist of a conjoint action and that would amount
to abetment. In the case of State of Bihar v. Ranen Nath
and other A.I.R. 1958 Patna 259, a Division Bench of the
Patna High Court was construing Section 27 of the
Industrial Disputes Act which uses the expressions
Instigation and incitement’ and observed that the words
“should be read to signify something deeper than a mere
asking of a person to do a particular act. There must be
something in the nature of solicitation to constitute
instigation or incitement” and it was held that the words
seem to convey the meaning “to goad or urge forward or
to provoke or encourage the doing of an act.” It was
further observed that what acts should amount to
instigation or incitement within the meaning of that
section will depend upon the “particular facts of each
case”, and that in some circumstances a “throw of a
finger” or “a mere turning of the eye’ may give rise to an
inference of either “incitement or instigation”, and yet in
others even “strong words, expressly used, may not
mean that the person using them was stimulating or
suggesting to anyone to do a particular act.” The court
expressed the view that there must be something
“tangible” in evidence to show that the persons
responsible for such action were “deliberately trying to
stir up other persons to bring about a certain object”.
According to a division bench of the Calcutta High Court,
a person abets the doing of a thing when he or she, inter
alia. “instigates any person to do that thing.” The other
modes of abetment, besides instigation, are “conspiracy
and intentional aid”. The word “instigation” literally
means “to goad or urge forward to do an act.” “It is
something more than co-operation.” In the case of Shri
Ram and another, 1975 (2) S.C.R. 622, the Supreme
Court observed that in order to constitute abetment, the
abettor must be shown to have “intentionally” aided the
commission of the crime. “Mere proof that the crime
charged could not have been committed without the
interposition of the alleged abetter is not enough
compliance with the requirements of Section 107”. A
person may, for example, “invite another casually or for a
friendly purpose and that may facilitate the murder of
the invitee”. But unless the invitation was extended “with
intent to facilitate the commission of the murder”, the
person inviting cannot be said to have abetted the
murder. It is not enough that an act on the part of the

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alleged abettor “happens to facilitate the commission of
the crime”. “Intentional aiding and therefore active
complicity is the gist of the offence of abetment under
the third paragraph of Section 107”.

19. In case of suicide how the evidence is required to be
appreciated has been stated by the Hon’ble Supreme
Court in number of judgments. In State of West Bengal v.
Orilal Jaiswal
, (1994) 1 SCC 73, the Hon’ble Supreme
Court has cautioned that the Court should be extremely
careful in assessing the facts and circumstances of each
case and the evidence adduced in the trial for the
purpose of finding whether the cruelty meted out to the
victim had in fact induced her to end the life by
committing suicide. If it appears to the court that a victim
committing suicide was hypersensitive to ordinary
petulance, discord and differences in domestic life quite
common to the society to which the victim belonged and
such petulance, discord and differences were not
expected to induce a similarly circumstanced individual
in a given society to commit suicide, the conscience of
the court should not be satisfied for basing a finding that
the accused charged of abetting the offence of suicide
should be found guilty. Further the Hon’ble Supreme
Court in case of Chitresh Kumar Chopra v. State (Govt. of
NCT of Delhi), (2009) 16 SCC 605 had an occasion to deal
with this aspect of abetment. The Court dealt with the
dictionary meaning of the words “instigation” and
“goading”. The Court opined that there should be
intention to provoke, incite or encourage the doing of an
act by the latter. Each person’s suicidability pattern is
different from the other. Each person has his own idea of
self esteem and self respect. Therefore, it is impossible
to lay down any straitjacket formula in dealing with such
cases. Each case has to be decided on the basis of its
own facts and circumstances.

20. The Hon’ble Supreme Court in case of Amalendu Pal
@ Jhantu vs. State of West Bengal
, 2010 AIR(SC) 512,
after considering various earlier judgments in para 15
observed that,

“15. Thus, this Court has consistently taken the
view that before holding an accused guilty of an

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offence under Section 306 IPC, the Court must
scrupulously examine the facts and circumstances
of the case and also assess the evidence adduced
before it in order to find out whether the cruelty
and harassment meted out to the victim had left
the victim with no other alternative but to put an
end to her life. It is also to be borne in mind that in
cases of alleged abetment of suicide there must be
proof of direct or indirect acts of incitement to the
commission of suicide. Merely on the allegation of
harassment without their being any positive action
proximate to the time of occurrence on the part of
the accused which led or compelled the person to
commit suicide, conviction in terms of Section 306
IPC is not sustainable.”

“16. In order to bring a case within the purview of
Section 306 of IPC there must be a case of suicide
and in the commission of the said offence, the
person who is said to have abetted the commission
of suicide must have played an active role by an act
of instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of
abetment by the person charged with the said
offence must be proved and established by the
prosecution before he could be convicted under
Section 306 IPC.”

21. The Hon’ble Supreme Court in the case of Randhir
Singh v. State of Punjab
, (2004) 13 SCC 129 has
reiterated the legal position as regards Section 306 IPC
which is long settled in para 12 and 13. Para 12 and 13
reads thus :

“12. Abetment involves a mental process of
instigation a person or intentionally aiding that
person in doing of a thing. In cases of conspiracy
also it would involve that mental process of
entering into conspiracy for the doing of that thing.
More active role which can be described as
instigating or aiding the doing of a thing is required
before a person can be said to be abetting the
commission of offence under Section 306 IPC.

13. In State of W. B. v. Orilal Jaiswal this Court has

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observed that the courts should be extremely
careful in assessing the facts and circumstances of
each case and the evidence adduced in the trial for
the purpose of finding whether the cruelty meted
out to the victim had in fact induced her to end the
life by committing suicide. If it transpires to the
court that a victim committing suicide was
hypersensitive or ordinary petulance, discord and
differences in domestic life quite common to the
society to which the victim belongs and such
petulance, discord and differences were not
expected to induce a similarly circumstances
individual in a given society to commit suicide, the
conscience of the court should not be satisfied for
basing a finding that the accused charged of
abetting the offence of suicide should be found
guilty.”

22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1
SCC 750 the Supreme Court while interpreting Section
306
IPC held that:

“Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of
a thing and without a positive act on the part of the
accused to instigate or aid in committing suicide,
there cannot be any conviction. It was further held
that to attract Section 306 IPC there has to be a
clear mens tea to commit the offence.”

23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9
SCC 618. the Supreme Court held that

“Instigation is to goad, urge forward, provoke, incite
or encourage to do ‘an act’. To satisfy the
requirement of instigation though it is not
necessary that actual words must be used to that
effect or what constitutes instigation must
necessarily and specifically be suggestive of the
consequence. Yet a reasonable certainty to incite
the consequence must be capable of being spelt
out. The present one is not a case where the
accused had by his acts or omission or by a

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continued course of conduct created such
circumstances that the deceased was left with no
other option except to commit suicide in which case
an instigation may have been inferred. A word
uttered in the fit of anger or emotion without
intending the consequences to actually follow
cannot be said to be instigation.”

24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC

371. the deceased committed suicide on 27.7.1998.
whereas, the alleged quarrel had taken place on
25.7.1998 when it was alleged that the appellant had
used abusive language and also told the deceased to go
and die. The Supreme Court in the said circumstances
held that the fact that the deceased committed suicide
on 27.7.1998 would itself clearly point out that it was not
the direct result of the quarrel taken place on 25.7.1998
when it is alleged that the appellant had used the
abusive language and also told the deceased to go and
die.

25. Taking note of various earlier judgments, in M. Mohan
u. State Represented the Deputy Superintendent of
Police, (2011) 3 SCC 626. the Supreme Court held that
“Abetment involves mental process of instigating or
intentionally aiding a person in doing of a thing. There
should be clear mens rea to commit offence under
Section 306. It requires commission of direct or active act
by accused which led deceased to commit suicide seeing
no other option and such act must be intended to push
victim into a position that he commits suicide.”

26. On a close reading of the above provisions of the IPC,
and the principles laid down by the Supreme Court in
various decisions, it is apparent that in a case under
Section 306 IPC, there should be clear mens-rea to
commit the offence under this Section and there should
be direct or active act by the accused, which led the
deceased to commit suicide, that is to say that there
must be some evidence of “instigation”, “cooperation” or
“initial assistance” by the accused to commit suicide by
the victim/deceased.

27. In Madhavrao Jiwajirao Scindia v. Sambhajirao

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Chandrajirao Angre, (1988) 1 SCC 692 the Supreme
Court observed vide Para 7 that:

“7. The legal position is well settled that when a
prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made
prima facie establish the offence. It is also for the
court to take into consideration any special features
which appear in a particular case to consider
whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on
the basis that the court cannot be utilized for any
oblique purpose and where in the opinion of the
court chances of an ultimate conviction are bleak
and, therefore, no useful purpose is likely to be
served by allowing a criminal prosecution to
continue, the court may while taking into
consideration the special facts of a case also quash
the proceeding even though it may be at a
preliminary stage.”

It was a proposition relating to criminal prosecution.

28. In Madan Mohan Singh v. State of Gujarat, (2010) 8
SCC 628. the Supreme Court quashed the proceedings
under Section 306 IPC on the ground that the allegations
were irrelevant and baseless and observed that the High
Court was in error in not quashing the proceedings.

29. Accepting the allegations made against the
applicants by the prosecution as it is, they do not
constitute the offence of abetment. I am conscious of the
fact that five persons of one family lost their lives on
account of drastic step taken by them for no reason. It is
very difficult to understand the mental state of mind of
such persons who take an extreme step of putting an end
to their life voluntarily by committing suicide.

30. According to the World Federation for Mental Health
(WFMH), a number of countries have established national
suicide prevention plans or strategies. Their principles

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and action steps represent good sources for developing
specific policy recommendations to present to
governmental and legislative leaders. Common elements
of these plans and strategies include:

– Campaigns to increase public awareness of suicide as
a preventable problem, to develop broad based
support for prevention efforts, and to reduce
stigma;

– Community development to support creation and
implementation of suicide prevention programs;

– Improved access to services to suicidal people and
their loved ones, and improved service delivery
efforts through development of guidelines and
linkages;

– Media education to improve reporting and portrayals
of suicide in the media;

– Training for caregivers to improve recognition of at-

risk behaviour and delivery of effective treatments;

– Incorporation of licensing standards for professional
caregivers;

– Development and promotion of effective clinical and
professional practices;

– Means restriction initiatives to reduce access to lethal
means and methods of self harm;

– Research and evaluation to promote and support
research, improve surveillance systems, and
evaluate the effectiveness of new or existing
suicide prevention interventions.

31. In this view of the matter, I am of the opinion that

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there is absolutely no material on record, sufficient for
continuing the criminal prosecution against the
applicants. The factual position clearly shows that the
criminal proceedings pending against the applicants is
nothing, but a sheer abuse of the process of law, which
should be quashed by exercising powers under Section
482
of the Criminal Procedure Code. Mere vague
allegations of harassment by themselves would not
amount to abetement of the offence of commission of
suicide. Something more is required under Section 107 of
the IPC. These requisite ingredients are missing in this
case.

32. Commission of suicide in the State is at rampage.
Everyday, cases are reported. Sometimes, it could be a
student or an estranged wife or a frustrated or mentally
disturbed husband or it could be a terminally ill person
fed-up with the ailment etc. Life is precious and should
not be allowed to be lost in this manner. The State owes
an obligation to see that its subjects do not take the
extreme step of committing suicide for any reason. In
such circumstances, the State Government should also
seriously consider evolving some action plan or
strategies as referred to above.”

13. The Supreme Court, in the case of M. Mohan vs. State
Represented
by the Deputy Superintendent of Police,
AIR 2011 SC 1238, observed in paras-45 and 46, as under;

“45. Abetment involved 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.

46. The intention of the Legislature and the ratio of the
cases decided by this court are 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/she committed suicide.”

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14. The learned APP placed strong reliance on the decision of
the Supreme Court in the case of Chitresh Kumar Chopra v.
State (Government of NCT of Delhi), (2009) 16 SCC 605
and complained that since the charge-sheet has been filed,
whatever has been stated in the charge-sheet should be
presumed as true.

15. I have gone through the decision relied upon by the
learned APP in the case of Chitresh Kumar Chopra (supra), the
facts of the said case were altogether different. Apart from the
suicide note, which was left behind by the deceased, the
statements were recorded by the police during the
investigation of the different persons, showing that on
account of business transactions with the accused, the
deceased was put under tremendous pressure to do something
which he was, perhaps, not willing to do. Having regard to the
materials on record, the Supreme Court took the view that the
conduct of the appellant and his accomplishes was such that
the deceased was left with no other option except to put an
end to his life. In my view, the decision of the Supreme Court
in the case of Chitresh Kumar Chopra (supra) is
distinguishable and would not help the prosecution.

16. In the result, this application is allowed. The proceedings
of the Sessions Case No.145 of 2015 pending in the court of
the learned Sessions Judge at Surat are hereby quashed so far
as the applicant is concerned. The case shall proceed further in
accordance with law so far as the other co-accused are
concerned.




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                 Direct service is permitted.


                                                                     (J.B.PARDIWALA, J.)

         Vahid




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