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Judgment
Tarlok Singh Chauhan, J.—The petitioner by way of the present Revision Petition has prayed for setting aside the order dated 22.1.2013 passed by learned Special Judge, Shimla ordering framing of charges against the petitioner under Sections 306 and 201 of the Indian Penal Code and subsequent order dated 28.3.2013, whereby charges have been framed against him.
The brief facts giving rise to the filing of the charge sheet against the petitioner can be enumerated as thus:-
a) A case FIR No. 66/2010 dated 28.3.2010 under Section 306, 201 and 34 of Indian Penal Code was registered at Police Station (West), Shimla on the complaint of Sh. Sampuran Singh Kalmotia. It was alleged in the FIR that the petitioner along with his father Sh. Pardeep Kumar Sarpal and mother Smt. Uma Sarpal abetted the commission of suicide by Ms. Ritu Kalmotia on 28.3.2010. It was alleged that the father of the petitioner along with two others visited the house of the complainant in civil dress on 28.3.2013 with intent to destroy the suicide note etc. which deceased might have written.
b) The investigation of the case was initially carried out by the police authorities of Police Station (West), Shimla. The complainant being dissatisfied with the investigation conducted by Himachal Pradesh Police preferred a petition before this Court with the prayer to transfer the investigation of the case FIR No. 66 of 2010 dated 28.3.2010 registered under Section 306 and 201 IPC at Police Station (West), Shimla to Central Bureau of Investigation. Consequently, case RC 0962010S0002 dated 26.5.2010 was registered in the Shimla Branch of Central Bureau of Investigation in compliance to the orders of this Court. Thereafter, the investigation was carried out by the respondent.
c) That the respondent after investigation presented the challan in the Court of learned Special Judge, Shimla. It has been alleged by the respondent that petitioner and the deceased Ritu Kalmotia were known to each other from School/College/University days and were in an intimate relationship with each other. This relationship continued even after both of them got employed as Judicial Magistrate and Lecturer respectively. This relationship led to desire in them to get married to each other, which was not acceptable to the parents of the petitioner and they opposed the marriage on account of non-matching of their horoscopes. However, the petitioner continued to convince deceased and her parents that he would get married to her under all circumstances. It has further been alleged that the overt act on the part of the petitioner took place on 24.3.2010 when his engagement was solemnized with Dr. Pooja Thami, despite the fact that petitioner and deceased were in relationship for a long period of time and the petitioner had been consistently promising to marry the deceased.
d) It is further alleged that immediately, on being informed by the petitioner on the intervening night of 27.3.2010, deceased took the extreme step of ending her life as a result of alleged mental cruelty meted out by the petitioner. It is also alleged that keeping in view their relationship and the fact that it was within public knowledge, petitioner ought to have anticipated the probable consequences of his action. This act of betrayal on the part of the petitioner left no other option for the deceased except to take drastic step to end her life. It is also alleged that the extreme step taken by the deceased was the immediate result of the action of the petitioner and cannot be perceived to be voluntary act on the part of the deceased. It is further alleged that the petitioner instigated deceased to commit suicide by informing his engagement with Dr. Pooja Dhami knowing well that the deceased would not be able to bear the shock of this news as their relation was in public knowledge. This alleged act/conduct of petitioner is alleged by the respondent to have driven deceased to commit suicide. It is further alleged that the petitioner had intentionally hidden his Laptop and deleted the photographs indicating his intimate relationship with deceased from his Mobile Phone and Laptop and had also torn his horoscope which was allegedly recovered by the investigating agency from outside the boundary wall of his residence during search.
After completion of the evidence, challan was up against the petitioner for having committed offence punishable under Sections 306 and 201 IPC, while disciplinary proceedings were recommended against the other named persons i.e. Sh. Pardeep Kumar and Mathura Dass for unauthorizedly entering the house of the deceased and carrying out the search. In so far as Smt. Uma Sarpal is concerned, no finding was given against her nor was she accused in the present case.
The learned Special Judge vide order dated 22.1.2013 ordered framing of charges against the petitioner and thereafter on 28.3.2013 framed charges against him under Sections 306 and 201 IPC. It is against these two orders that the present Revision Petition has been filed on the grounds as raised in the memo of appeal.
I have heard the learned counsel for the parties and gone through the records of the case.
At the outset it may be observed that the present petition has been filed under Section 397 of the Code of Criminal Procedure, which vests this Court with the power to call for and examine the records of an inferior Court for the purpose of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. (Ref Amit Kapoor Vs. Ramesh Chander and Another, .
Sh. Satyen Vaidya, learned counsel for the petitioner has vehemently argued that the learned Court below has failed to take into consideration the provisions of Section 306 read along with Section 107 of the Indian Penal Code, thereby reached a wrong conclusion.
Section 306 of the Indian Penal Code reads 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."
How a person abets the doing of a thing is provided under Section 107 of the Indian Penal Code, which reads thus:-
"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 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."
It is contended by the learned counsel for the petitioner that in terms of explanation-1, it was incumbent upon the prosecution to have established some ''overt act'' before implicating and charging the petitioner for commission of offence under the aforesaid two Sections.
I am afraid that this contention of the petitioner cannot be accepted for the simple reason that the so called ''overt act'' can only be determined when there is a full-fledged trial of the case. Admittedly, the petitioner and the deceased were not strangers and there is ample amount of evidence available on record suggesting that the relationship inter se the deceased and the petitioner was definitely more than simple friendship. It has also come on record that the deceased committed suicide only after the petitioner broke the news of his engagement with Dr. Pooja Thami. The prosecution case is that the deceased could not bear the shock of such news, which drove her to commit suicide. The records of investigation further reveal that the parents of the girl were ready to get the deceased married to the petitioner, but there was some resistance on the side of the parents of the petitioner. Therefore, in such circumstances, it cannot be said that there has been no overt act on the part of the petitioner.
It has also come on record that prior to the deceased committing suicide, there were numbers of telephonic calls between the petitioner and the deceased. What exactly was the conversation will have to be proved during the trial of the case, but then it cannot be ignored that the news of engagement of the petitioner had definitely perturbed the deceased, but then she tried to put up a brave face and ultimately took the extreme step of committing suicide after her mother and sister had left Shimla for Chandigarh on 28.3.2010.
During the course of investigation, it has also come on record that certain evidence has been destroyed by the petitioner, he had concealed his laptop and had deleted the photographs which captured certain intimate movements between the petitioner and the deceased. He had also torn his horoscope into 47 pieces.
It is a trite that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients, constituting the alleged offence of offences. For this limited purpose, the Court may sift the evidence.
Framing of charges is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the ''record of the case'' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
The learned counsel for the petitioner would then argue that this Court had ample powers to quash the charges especially when after taking into consideration the material and documents on record it is clear that it will not result in conviction and in support of such contention, he relied upon the following observations made by Hon''ble Supreme Court in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), :-
"25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, .
In State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., , a three-Judge Bench of this Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus: (SCC P. 671, para 32)
"32....if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage".
(emphasis supplied)
I am afraid that the ratio of the aforesaid judgment is of no assistance to the petitioner. The same rather goes against the petitioner, because the Hon''ble Supreme Court has clearly held that the Court has to consider the material only with a view to find out that if there is a ground for presuming that the accused had committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
The learned counsel for the petitioner would then contend that the only evidence available to link the petitioner with the death (suicide) of the deceased as abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without there being a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. In support of his contention, he has placed reliance on the following observations of the Hon''ble Supreme Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, :-
"7. The word "suicide" in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. "Sui" means "self" and "cide" means "killing", thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types:
Degradation of corpse of deceased by burying it on the highway with a stake through its chest.
Forfeiture of property of deceased by the State.
This penalty was later distilled down to merely not providing a full Christian burial, unless the deceased could be proved to be of unsound mind. However, currently there is no punishment for suicide after the enactment of the Suicide Act, 1961 which proclaims that the rule of law whereby it was a crime for a person to commit suicide has been abrogated.
In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, attempt to suicide is an offence under section 309 of IPC.
"Abetment" has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:
"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 places in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."
Explanation 2 which has been inserted along with section 107 reads as under:
"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."
The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh and Another, Gayatribai Vs. State of M.P., , the allegations levelled are as under:- (SCC p. 731, para 1)
"1 .........My mother-in-law and husband and sister-in-law (husband''s elder brother''s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."
The court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law.
The learned counsel also placed reliance on another judgment of this court in Ramesh Kumar Vs. State of Chhattisgarh, . A three-Judge bench of this court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in paragraph 20 has examined different shades of the meaning of "instigation". Para 20 reads as under:- (SCC p. 629)
"20. 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 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."
In State of West Bengal Vs. Orilal Jaiswal and another, , this 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 trail 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 difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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.
The Court in Ramesh Kumar case came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema may necessarily be drawn.
In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
This court in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "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 others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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."
I am afraid that the ratio of this judgment does not support the case of the petitioner. The prosecution has in this case placed on record the call details of the petitioner and the deceased, which prima facie establishes that the deceased and the petitioner were in constant touch till the time the deceased committed suicide. Whether the petitioner in fact instigated the deceased to commit suicide would be a question, which can only be established during the course of trial. There is nothing on record to suggest that the victim committing suicide was hyper sensitive.
Sh. Satyen Vaidya, learned counsel for the petitioner has then relied upon the judgment of Madan Mohan Singh Vs. State of Gujarat and Another, to contend that in order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required, which was missing in this case. He in particular has relied upon the following observations from the aforesaid judgment:-
"11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this.
In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.
It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of West Bengal, , this Court had quashed the proceedings initiated against the accused.
We have already explained that the baseless and irrelevant allegations could not be used as a basis for prosecution for a serious offence under Section 306 IPC. Similarly, we have already considered Section 294(b) IPC also. We have not been able to find anything. Under such circumstances, where the FIR itself does not have any material or is not capable of being viewed as having material for offence under Sections 306 and 294(b) IPC, as per the law laid down by this Court in State of Haryana and others Vs. Ch. Bhajan Lal and another Shri S.A. Khan, , it would be only proper to quash the FIR and the further proceedings."
I am afraid that the observations as relied upon by the learned counsel for the petitioner are totally misplaced and have been read out of context. The above case had been decided on merits and it is thereafter the Court after examining the material on record had come to the conclusion that there was no specific allegation and material of definite nature which could prove that the accused had abetted the suicide had acquitted the accused.
Sh. Satyen Vaidya, learned counsel for the petitioner would then contend that abetment involves a material process of instigating a person or intentionally aiding a person in doing of a thing and unless and until there was something in the record to prove a positive act on the part of the petitioner to instigate or aiding the commission of suicide, no charges could have been framed. To buttress his contention, he has relied upon the following observation of the Hon''ble Supreme Court in M. Mohan Vs. The State represented by The Deputy Superintendent of Police, :-
"44. 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 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."
I am afraid that the observations made above are again of no assistance to the petitioner, because it was after a full-fledged trial and thereafter conviction by the learned Court below that the Hon''ble Supreme Court on the basis of material available on record had concluded that without a positive act on the part of the accused to instigate or aid in committing suicide conviction cannot be sustained.
The learned counsel for the petitioner expanding his arguments further then contended that accepting the allegations of the prosecution to be true on their face value, even then no case was made out because the mere fact that the petitioner may have broken his promise to marry the deceased and the deceased in frustration had committed suicide, the provisions of Section 306 and 107 of the Indian Penal Code would not be attracted. He in support of his contention has relied upon the following observations from the judgment of this Court in State of Himachal Pradesh Vs. Virendra Singh Kanwar and Another, :-
"7. The question, which arises for consideration is whether a boy who breaks his promise to marry a girl and girl in frustration commits suicide, can be said to have committed an offence punishable under Section 306 of the Code, i.e. abetment of suicide. The answer indeed is No.
Section 306 of the Code reads:
"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."
So far the question of abetment is concerned, we have to look to Section 107 of the Code, which defines abetment. Section 107 reads:
"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 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."
Admittedly, the present case does not fall within clause First or Second. So far clause third is concerned, the abettor must be shown to have "intentionally" aided the commission of crime or illegally omitted to "do a thing", which resulted in the commission of the crime alleged.
It is not the case of the prosecution that the petitioner aided or facilitated the suicide committed by the deceased nor is there any evidence to this effect.
So far the question of "illegal omission" is concerned, we hardly need to emphasize that "to prove abetment", it is necessary to show that accused intentionally aided the offence by his non-interference. The omission, we may emphasize involves a breach of legal obligation. In the present case, by no stretch, it can be said that the accused breached any "legal obligation" by not marrying the deceased even if he had promised to marry the deceased at one point of time.
What at best can be said is that deceased was shocked and emotionally disturbed when accused Varinder Singh married another girl. It was under this emotional shock and frustration that deceased committed suicide. Such an act on the part of the deceased does not lead to the conclusion that accused Varinder Singh abetted the suicide. To constitute abetment, their must exists "mens rea" or what is popularly called as "community of intention". No such intention is attributable to the accused. It cannot be said that the respondent intended the committal of suicide by the deceased. Merely because a love from girl fails in her attempt to marry her lover and commit suicide, will not make the lover abettor to the suicide."
He further placed reliance upon the following observations from the judgment in M. Ramesh and Ors. vs. State of A.P., 2009 (1) Crime 374:-
"14. So, now the point for determination is whether the refusal of the 1st accused amounts to intentional aiding, as defined under the third clause of Section 107 IPC.
Refusal to marry, if can be said ultimately make the other person to commit suicide then it can definitely be said that the person who refuses to marry has intentionally aided. But, that is not so. If a person refuses to marry another, the result would naturally be either to ignore, report the matter to elders or police, suffer silently or take the extreme step of committing suicide, as happened in this case. As stated supra, if the eventuality on account of refusal is to take the extreme step of committing suicide alone, then it can be said that it is intentional aiding.
The cause for the deceased to take the extreme step of committing suicide is the refusal by A1 to marry. The act on account of refusal is the suicide by the deceased. Thus, there is a cause and an act. If it can be said that cause is the end result of the death/suicide, then it can definitely be said that it is intentionally aiding. To establish that result of refusal is suicide, the proximity between the cause and the act must be clearly established.
In Shri Ram Vs. The State of U.P., the Supreme Court held as under:-
"......In order to constitute abetment, the abettor must be shown to have "intentionally" aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107...."
In the case of State of Maharashtra Vs. Zamandas Vansimal Paryan, , a partner in a firm committed suicide due to the other partners (accused) taking away large sums of money out of partnership fund for various purposes and their not rendering an account to the deceased, and for not permitting the deceased utilizing the profits. The other partners in the firm were accused of an offence under Section 306 IPC for the suicide of the deceased. In that case, the Supreme Court has taken the view that the accused i.e., other partners cannot be said to have committed the offence punishable under Section 306 IPC.
Similarly, in Alka Grewal Vs. State of M.P., , a woman was held to be not guilty of the offence under Section 306 IPC for her husband committing suicide, after feeling insulted and humiliated due to her immoral conduct. In the said case, the Court specifically held that though she may be the cause for suicide of her husband, she cannot be said to have abetted his suicide.
In another case in V. Adinarayana and Another Vs. State of A.P., , where a woman committed suicide when the accused threatened her that he would reveal her illicit connection to her husband, this court has taken the view that the accused cannot be said to have committed the offence under Section 306 IPC.
In Mahendra Singh and Another, Gayatribai Vs. State of M.P., the Supreme Court held that merely because the deceased woman stated in her dying declaration that she was harassed by the accused, the accused cannot be held guilty of an offence under Section 306 IPC.
Coming to the facts on hand, maybe it is true that suicide by the deceased was solely on account of the 1st accused''s refusal to marry. That may be the cause for her to take the extreme step of committing suicide, but it cannot be said that the 1st accused has intentionally aided or abetted the deceased to commit suicide. As stated supra, when so many things are possible because of refusal, including suicide, it cannot be said that he has intentionally aided the commission of suicide.
In Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, , the Supreme Court has taken the view that even if there is a quarrel between the accused and the deceased and the accused tells the deceased to ''go and die'' even then it would not constitute the ingredient of instigation, and presence of mens rea is necessary concomitant of instigation. In that case, the deceased committed suicide after two days of quarrel during which time the appellant uttered the said words ''go and die''.
There must be direct proximity between the words and the act. Then only it can be said that it is intentionally aiding. There may be so many reasons for an individual to take the extreme step of committing suicide, that is to say a person is sensible or frustrated on account of so many ....things etc. In the instant case, definitively it can be said that the cause for the deceased to commit suicide is the refusal of the 1st accused to marry her, but it cannot be said that the said refusal is intentional thing, as defined under Section 107 IPC.
In the light of the above discussion, this Court is of the view that the contention of the learned Additional Public Prosecutor that refusal amounts to intentional aiding cannot be accepted and the accused cannot be held to be guilty of the offence under Section 306 IPC."
The ratio of the aforesaid judgments is again not applicable to the facts of the present case. It was after regular trial and conviction that these orders came to be set aside in appeals after scrutinizing the material available on record.
The learned counsel for the petitioner would then rely upon the following observations made by the Punjab and Haryana High Court in Narinder Singh @ Bablu Vs. State of Haryana, :-
"2. The gravamen of the allegations against the petitioner are that he was in affair with a girl by the name of Manjeet Kaur and the latter could not become successful in marrying herself with the petitioner which frustration ultimately led to the commission of suicide on the part of the girl. On these allegations the criminal case under Section 306 IPC was registered against the petitioner. During the course of investigation certain letters allegedly written by the deceased have been taken by the investigating officer indicating a love affair of the deceased with the petitioner and her utmost faith in the petitioner that he would marry her. The deceased unfortunately could not succeed in her desire and could not marry him and she committed suicide by taking poisonous substance.
Section 306 of the Indian Penal Code lays down:
"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."
The abetment again is a matter of definition under Section 107 IPC and it states that:
"A person abets the doing of a thing who instigates any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act of illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that act."
Explanation added to Section 107 IPC also lays down that 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.
A combined reading of provisions of Sections 306 and 107 IPC clearly comes to this that mere must be a direct nexus between effect of abetment and the abetment itself. There is not an iota of evidence collected by the investigation officer that petitioner Narinder Singh at any point of time instigated the deceased to commit suicide in the failure of their desire of maturity of their relationship. The language and the letters quoted by the investigating officer during the course of investigation indicate that the deceased and the petitioner were two intimate souls and perhaps at one point of time the petitioner might have promised with the deceased for the marriage but at no point of time the petitioner ever made representation to the deceased that in the failure of their affair maturing into marriage, the deceased would punish herself by adopting extreme steps. In such a situation, it cannot be said even remotely that the petitioner ever abetted or tried to abet the deceased in order to take her valuable life. If the deceased out of her poor frustration had adopted and abetted to finish herself by resorting to the method unapproved by the Society no blame can be given to the petitioner and the petitioner cannot be dragged to prosecution."
I am afraid that I cannot agree to the ratio laid down in the aforesaid judgment. The observations made by the learned Judge in para 4 are too farfetched and too general in nature. Each case be it civil or criminal has to be decided on its own facts and circumstances and it would be too farfetched to hold that "if the deceased out of her poor frustration had adopted and abetted to finish herself by resorting to the method unapproved by the Society no blame can be given to the petitioner and the petitioner cannot be dragged to prosecution."
The jurisdiction of this Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression ''prevent abuse of process of any court or otherwise to secure the ends of justice'', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, conceder videtur id quo res ipsa esse non potest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused (Ref. Amit Kapoor''s case supra).
In the present case there is ample amount of evidence on record to prove that long conversations took place between the petitioner and the deceased in close proximity with the time of suicide, which would be one of the incriminating circumstances. There is ample material available on record to prima facie establish that the petitioner and the deceased were not strangers and shared a relationship which was definitely beyond "simple friendship". There is also material available on record to show that immediately after learning about the engagement (Roka) of the petitioner with Dr. Pooja Thami, the deceased had been perturbed. This Court need not to discuss in detail the other material coming on record, lest it causes prejudice to the case of either of the parties suffice it to say that the petitioner has failed to carve out a case for interference.
The learned trial Court has passed a detailed order, which order is neither erroneous much less gravely erroneous and it is not even the case of the petitioner that there has been non compliance of any of the provisions of law. The petitioner has failed to point out any arbitrariness or perversity in the impugned order.
Ex-consequenti, there is no merit in the petition and the same is dismissed. Needless to state that the observations made in this petition are solely for the purpose of deciding the present petition and the same shall have no effect or bearing on the merits of the case and the learned Courts below shall proceed with the matter uninfluenced by any of the observations made herein above.