JUDGMENT [ENTITY], J.
1. The petitioner has approached this Court by filing the present petition under [SECTION] of the [ACT] (for short 'the Code') for quashing of FIR No. 207 dated September 3, 2005 registered under [SECTION] [ACT] at Police Station, Sector 31, Chandigarh.
2. Briefly facts as stated in the petition are that the petitioner is a permanent commissioned lady Dental Officer of Air Force, who at the time of filing of the petition was serving as Oral and Maxillofacial Surgery Specialist at the prestigious Air Force Institute of Dental Sciences, Bangalore. At the time of allege occurrence, petitioner was commanding 9 Air Force Dental Centre at Chandigarh. The FIR came to be recorded against the petitioner on account of suicide committed by Airman Sergeant [ENTITY] on September 3, 2005. The FIR was registered against the petitioner on the basis of statement made by his widow. The primary base of the FIR was two written notes recovered from the pocket of uniform worn by the deceased at the time of suicide.
3. The petitioner has given brief account of facts preceding to suicide which according to her clearly establish that petitioner did not have any role to play in abetting the suicide by Airman Sergeant [ENTITY]. It is submitted that on August 29, 2005 the deceased without permission of the petitioner used the only ultrasonic scaler of the Dental Centre. As the machine was damaged due to mishandling, petitioner issued show cause notice to the deceased on August 31, 2005. Immediately on receipt of notice, the deceased sought an interview with Air Officer Commanding. It was mentioned in the request that matter will be disclosed to the Air Officer Commanding only. The interview was granted to the deceased. On September 3, 2005 on the date fixed for interview, the deceased reported to the Personal Assistant of the Air Officer Commanding at 12.15 hours. The deceased was called for interview at 13.15 hours. After hearing the deceased patiently for 7-8 minutes, the Air Officer Commanding directed his Personal Assistant to call the petitioner as well. The deceased was directed to wait in the PA's office till the petitioner was also available for clarifications. The petitioner was informed of the order by the Air Officer Commanding. After waiting 10-15 minutes in the office of PA, the deceased left his office on the pretext of going to toilet. Immediately on the arrival of the petitioner, the Air Officer Commanding called the petitioner as well as Airman Sergeant [ENTITY] in his office but he was not available. The Personal Assistant looked for him in the toilets and around the building but did not find him anywhere. Search party was deputed to look for him and it was only after two hours extensive search that the deceased was spotted hanging from a ladder behind the Dental Centre Building hidden from public view. After removal of the body, he was found to be dead. The Air Force authorities informed of the incident to the local police.
4. Two written notes recovered from the uniform of the deceased were handed over to the police. As the incident had happened in the Air Force Campus and the suicide by a [ENTITY] naturally was a serious matter, it got pointed attention of senior officers at the headquarter level and court of enquiry was constituted with following terms of reference:
1. To enquire into the circumstances under which above named [ENTITY] died on 03 Sep 05.
2. To make brief account of circumstances of the incident.
3. To ascertain the following:
(a) Date, time and place of unnatural death.
(b) The nature of 'Duty' on which the person was engaged at the time of unnatural death. In case of leave, to being on record whether the deceased was traveling on LTC or not.
(c) The cause of unnatural death.
4. Was the accident due to any wrongful act or negligence on the part of any one?
5. If the death is suspected to be due to suicide, what are the possible causes for suicide as for as can be ascertained?
6. To ascertain whether NOK of the deceased intends to file compensation suit against any one for causing fatal injuries.
7. To bring on record following documents:
(a) Inquest report of the Civil Police
(b) Post mortem examinations report (c ) Death Certificate
(d) Sketch and photograph(s) of the site.
8. Was the death reported to the Civil Police as required? If so, When? What are the results of investigation by Civil Police.
9. To record findings and to ascertain if the death is attributable to Air Force Service.
10. To apportion blame, if any.
11. To make recommendations.
12. To prepare proceedings in quadruplicate.
5. During the course of enquiry which continued for about one month, 30 witnesses were examined besides various documents. On conclusion, it could not be discovered that there was any evidence of malafide on the part of the petitioner, which could be construed to hold that the petitioner abetted the suicide. However, vide order dated September 20, 2006 the petitioner was awarded punishment of forfeiture of two years past service for the purpose of promotion against which the petitioner had filed appeal which was pending at the time of filing of the petition.
6. Learned Counsel for the petitioner submitted that the necessity of filing the present petition arose for the reason that after the petitioner had already been punished by the Air Force Authorities, she started receiving notices from police for investigation of the FIR against her.
7. I have heard learned Counsel for the parties and with their assistance have perused the paper book.
8. Learned Counsel for the petitioner in view of the above factual matrix has raised two fold arguments. Firstly, the submission is that even if the FIR registered against the petitioner is taken on its face value, the same is liable to be quashed for the simple reason that same does not disclose any offence committed under [SECTION] [ACT]. Secondly, that continuation of investigation in FIR against the petitioner for the alleged offence is nothing else but double jeopardy as the petitioner cannot be tried or punished twice for the same offence. Once in proceedings under the [ACT] (for short "the Act") she has already been punished. Reliance has been placed on [SECTION], [SECTION], [SECTION] and [SECTION] of Act.
9. In response to the arguments raised by counsel for the petitioner, learned Counsel appearing for respondent No. 1 submits that it is too early to pray for quashing of the FIR as the investigation is still in progress. Further he submits that ground of double jeopardy is not available to the petitioner as the proceedings before the Court Martial were altogether for different object and the proceedings before the police authorities are altogether for a different offence.
10. Taking up the first ground raised by the petitioner first, whereby he has prayed for quashing of FIR. A perusal of the two written notes found in the uniform worn by the deceased at the time of suicide will be relevant. As per note I, which is extracted below:
I am writing this in full conscious. I am finishing my life as I am not able to with stand the harassment of Sqn Ldr [ENTITY], CO, 9 AFDC.
I have approached for justice from [ENTITY], AOC of 12 Wg, AF, in which I could understand, he also can not give me justice.
[ENTITY] I love you, please fight for full benefits and bring up [ENTITY] as she desres.
([ENTITY]) the only allegation against the petitioner is that he was being harassed by the petitioner. Besides that he also mentioned that he did not get justice from [ENTITY], AOC. In the second note, he had narrated various problems concerning his family i.e. his parents, son and himself. He mentioned that his only son is under medication, father suffering from spondylosis, with deformity-loss of holding power. Surgery attempted but operation cancelled because of higher blood pressure. Mother also suffering from kidney problem and could not walk, stand or sit properly. He could not leave his wife also to take care of his parents as he was also sick. As regards machine, which was damaged by him, he was asked to get it repaired and after repairs a bill of about Rs. 492/- was not reimbursed. As regards office problems, he mentioned as under:
The stock of gloves exhausted and local purchased. 1 Pkt (6-1/2 size) my size 7, sgt [ENTITY], Capt [ENTITY]-1/2. As [ENTITY] was on leave and SIO, and gloves was exhausted asked WO i/c about gloves for my use. He told take from S-I and use. I took five pairs. On madam returning, she found gloves stock was less, stopped the surgery and called WO and told him to enquire about. I was called by madam and asked about. I told I took 05 pairs-she asked me to replace one pkt from my own money, which I replaced 02 pkts from 3 BRD with the permission of SMO 3 BRD. Next day my 5 pairs gloves also exhausted and asked WO for the gloves, he brought 2 pairs for S-II for Capt [ENTITY] and I for asst size 6-1/2. For me [ENTITY] has told it is not required for sgt [ENTITY] and tells him the size is 6-1/2 and it will not come in for petrol as the vehicle was of sgt [ENTITY]. As I did not get justice, I requested an interview with you to tell all my problems, what I am facing and faced after the interview with you. [ENTITY] has issued me a Show Cause Notice for the unserviceability.
In this situation what should I do Sir, so, I thought, I request the higher authorities for discharge to look after my parents and keep my health at least as it is and stop deterioration of the state, as per AFO 14/200. Then I come to know the list of documents required, so asked parents to send but as their problem are deteriorating they are unable to procure the same. As there is only 1020 days to go on leave, I thought I will procure the same in the leave period. As I gave reply to Show cause Notice, my leave was cancelled and after some hours the leave was restricted to 10 days.
11. Learned Counsel referring to above material and the facts stated by the widow of the deceased especially about the treatment of her husband in Command Hospital and further that he was being harassed by the petitioner submitted that even if this is considered on its face value, the same does not constitute an offence under [SECTION] [ACT] as mens rea or instigation on the part of the petitioner cannot be inferred. All what happened in the office, if at all taken to be true was nothing more than a routine exercise to maintain discipline there. In support of mental status of the deceased, learned Counsel for the petitioner has referred to medical report of the deceased opining therein that petitioner was suffering from Schizophrenia. In his evidence Lt. Col. [ENTITY], classified specialist (Psychiatry) at Command Hospital (WC), Chandimandir stated certain facts about the period from August 16, 2005 to August 19, 2005 when the deceased remained admitted in the hospital before he committed suicide on September 3, 2005. It was stated by him that he was suffering from episodes of Schizophrenic Psychosis in August, 1996 and again in 1999. He had a seizure in February, 2005 for which he was on antiepileptic drug. On a Court question as to whether stress of occupational and domestic problems lead to relapse of Schizophrenia and as to whether Schizophrenia is a relapsing illness, the answer was yes. With regard to the fact of state of mind of person suffering from Schizophrenia, it was stated that in general 60-80% of patients with Schizophrenia have suicidal ideation, 30-55% attempt suicide. The triggering factors for suicide were stated to be emotional states, anger, frustration, hopelessness and helplessness.
12. Besides this another factor which needs notice is that the deceased in case he was aggrieved against any action of the petitioner had already sought interview with the Air Officer Commanding and the same was granted. After interview with the Air Officer Commanding, the petitioner was summoned and deceased was also asked to wait till such time, she comes. However, before the petitioner came the deceased had already left the place and committed suicide. When the things were sought to be clarified by Air Officer Commanding from the petitioner in the presence of the deceased, the reason as to why the deceased avoided the same can very well be imagined. Still further a perusal of the circumstances under which Sergeant [ENTITY] committed suicide on September 03, 2005 clearly show that facts which resulted in Court Martial proceedings were the same. The other allegation against the petitioner was merely tearing of his leave application.
13. Hon'ble the Supreme Court in a latest judgment in [PRECEDENT]. considered the issue with specific reference to the term 'harassment', in a case where the wife committed suicide and the allegations were that the husband and in laws used to harass her, opined that in such circumstances, the provisions of [SECTION] [ACT] are not attracted. Reference can be made to paras 9 to 16 thereof, which are extracted below:
9. The word "abetment" has been defined in [SECTION] [ACT] as follows:
Abetment of a thing-A person abets the doing of a thing, who First- Instigates any person to do that thingh; or, Secondly-Engages with one or more other person or person in any conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of the act, and thereby facilitates the commission thereof, is said to aid the doing of the act.
10. Learned Counsel for the appellant has relied on the decision of this Court in [PRECEDENT]. . In that case it was held that:
Where there was overwhelming evidence that the accused had made the life of his wife intolerable by constantly demanding money and made it clear to her that if she wanted to die, she may do so on very same day and give him relief forthwith, thereby spurring her and goading her to commit suicide, the case would squarely fall under the first category of abetment under [SECTION].
11. On the other hand, learned Counsel for the respondents relied on the decision referred to in the impugned judgment. Thus in [PRECEDENT] , where a suicide note was involved, this Court came to the conclusion that in the suicide note there was no reference of any act or incident whereby the appellant was alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased to have committed suicide. Hence, it was held that there was no abetment to suicide.
12. Similarly, in [ENTITY] Singh and Anr. v. State of M.P. 1995 Supp.(3) SCC 731, it was observed by this Court that it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea. In that case the appellant said to the deceased "to go and die". As a result of such utterance, the deceased went and committed suicide. However, the Supreme Court observed that no offence under [SECTION] [ACT] read with [SECTION] [ACT] was made out because there was no element of mens rea.
13. In [PRECEDENT], it was observed that "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] [ACT].
14. In the same decision it was observed following the decision in [PRECEDENT] 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 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, 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.
15. In our opinion, the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in laws. This, however, in our opinion would not by itself and without something more attract [SECTION] [ACT] read with [SECTION] [ACT].
16. However, in our opinion, mere harassment of wife by husband due to differences per se does not attract [SECTION] read with [SECTION] [ACT], if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then [SECTION] [ACT] may be attracted, whether it is a case of homicide or suicide. [PRECEDENT]. , [PRECEDENT]. , [PRECEDENT]. 14. In [PRECEDENT], while quashing a FIR registered under [SECTION] [ACT], Hon'ble the Supreme Court has opined as under:
5. An offence under [SECTION] [ACT] would stand only if there is an abetment for the commission of the crime. The parameters of the 'abetment' have been stated in [SECTION] of the [ACT]. [SECTION] says 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 or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission. The explanation to [SECTION] says that any wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of 'abetment'.
6. In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased-[ENTITY] in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased-[ENTITY].
7. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, [ENTITY]. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under [SECTION] of the [ACT] is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal.
14. In [PRECEDENT], Hon'ble the Supreme Court observed as under:
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.
21. In [PRECEDENT] 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 trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires 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.
15. In [PRECEDENT], Hon'ble the Supreme Court has held as under:
9. In [ENTITY] Singh v. State of M.P the appellant was charged for an offence under [SECTION] [ACT] basically based upon the dying declaration of the deceased, which reads as under: (SCC p. 731, para 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 [ENTITY] 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.
10. This Court, considering the definition of "abetment" under [SECTION] [ACT], found that the charge and conviction of the appellant for an offence under [SECTION] is not sustainable merely on the allegation of harassment of the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
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12. Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of Mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion.
16. If the facts of this case are examined on the principles laid down by Hon'ble the Supreme Court, I do not find any offence under [SECTION] [ACT] has been committed. Merely because a show cause notice was issued to the deceased for damaging a machine or he was directed to get the same repaired out of his own pocket will not mean that there was any mens rea or instigation to the deceased to commit suicide on the part of the petitioner. The deceased always had the remedy for redressal of his grievance before the senior officers and when once he sought interview with Air Officer Commanding, the petitioner was summoned for clarification in presence of the deceased but before the petitioner could reach the deceased committed suicide. From this it is evident that any of the actions during the course of her employment as a controlling officer of the deceased cannot be said to be such which could lead to the conclusion that she abetted the deceased in committing suicide.
17. Accordingly, the petition is accepted. The impugned FIR No. 207 dated September 3, 2005 registered under [SECTION] [ACT] at Police Station, Sector 31, Chandigarh and all proceedings subsequent thereto are quashed.
18. As the petition is being accepted on the first argument raised by the petitioner, I do not need it necessary to go into the second argument and leave the same open.
19. The petition is disposed of accordingly.