IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: March 16, 2011 Crl. Revision No. 950 of 2010 (O&M) Neelam Sharma. …Petitioner Versus State of Punjab and another …Respondents Crl. Revision No. 996 of 2010 (O&M) Shalinder Setia and others …Petitioners Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? CRR No. 950 of 2010 Present: Ms. Puja Chopra, Advocate, for the petitioner. (In CRR No. 950 of 2010) Mr. D.S.Bali, Senior Advocate with Mr. Amandeep Saini, Advocate, for the petitioners (In CRR No.996 of 2010) Mr. K.D. Sachdeva, Addl. A.G., Punjab, for the respondent-State. Mr. Vikas Chatrath, Advocate, for the complainant. Alok Singh, J. Revisionists-accused have invoked the revisional jurisdiction of this Court assailing order dated 09.12.2009 thereby framing charges against the accused-revisionists and other co-accused Ramesh Chander to face trial for offences punishable under Sections 306/511, 506 of the Indian Penal Code. Present is the glaring example to show how criminal system can be abused and to illustrate how some of our Courts are acting merely as post office. Facts of the present case, inter-alia, are that on 17.12.2004, complainant - Dalip Kumar Setia son of Kulwant Rai was sitting on the railway line; gateman asked him the purpose to sit on the railway line, then he disclosed that he is sitting on the railway line to commit suicide; gateman then stopped him from committing suicide and presented him before ASI Sukhwant Singh; ASI 2 CRR No. 950 of 2010 Sukhwant Singh recorded statement of Dalip Kumar Setia, who has stated before ASI that his brother Inderjit had expired about three years back; Ramesh Kumar Kukkar was Munim of his (Dalip Kumar Setia’s) brother Inderjit, thus, he knows all secrets of his family; joint land, in his (Dalip Kumar Setia’s) possession and cultivation, was sold through Ramesh Kumar Kukkar; He has taken loan of Rs. 5 lacs from the complainant’s wife (Reeta Setia) under different excuses like to give to officers for official work pertaining to land; Ramesh Kumar Kukkar has taken money from him (Dalip Kumar Setia) vide pronote and has mis-appropriated the same by signing the diaries; after the death of brother Inderjit, Ramesh Kumar Kukkar has refused to refund the amount of loan; brother Inderjit, during his life time, had agreed to pay Rs. 2 crores to him (Dalip Kumar Setia); however, after his death, his LRs i.e. his widow Promila, sons Sikander Setia and Shalender Setia, daughters Ranj and Bindia have refused to pay Rs. 2 crores to him (Dalip Kumar Setia); his (Dalip Kumar Setia’s) brother Ravi Kumar and sisters Sushma Rani and Neelam Kumari have been selling the land under the cultivation and possession of him (Dalip Kumar Setia) in different manners so that he (Dalip Kumar Setia) and his family may strives; reports were made to the police, 3 CRR No. 950 of 2010 Tehsildars and other officers, but no action was taken thereon, therefore, he (Dalip Kumar Setia) decided to kill himself i.e. in the morning at about 6 O’ Clock; The complainant had laid down on the railway line to commit suicide but gateman had saved him. On the above said statement of the complainant – Dalip Kumar Setia, police investigated the matter and has filed the challan against the accused persons for offences punishable under Sections 306/511, 506 of the Indian Penal Code. After filing of the challan by the police, matter was committed to the Sessions for trial. Learned counsel of the accused had argued for discharge of the accused, however, learned Additional Sessions Judge, did not find favour with learned counsel for the accused and proceeded to frame charges against the accused. Charges framed by learned Additional Sessions Judge are being reproduced as under:- “I, Nirmal Singh, Addl. Sessions Judge, Ferozepur, to hereby charge you above named accused as under: That on 17.12.2004 at about 6 a.m. at gate no. 48 B in the area of railway station Abohar you all attempted in abutment of commission of suicide by complainant Dalip Kumar and thereby you 4 CRR No. 950 of 2010 have committed an offence punishable under Section 306 IPC read with Section 511 IPC. Secondly That on the same date, time and place you all committed the criminal intimidation by causing loss/damage to the personal property of complainant Dalip Kumar and thereby committed an offence punishable under Section 506 IPC and with my cognizance. And, I hereby direct that you be tried by this Court on the above said charge. Certified that the contents of charge sheet have been read over and explained to accused in simple language.” I have heard learned counsel for the parties and have perused the record. Section 306 IPC reads as under:- “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.” In the opinion of this Court, to invoke Section 306 IPC for instigating any person to commit suicide, it is 5 CRR No. 950 of 2010 to be established that the victim has committed suicide, if no suicide has taken place, there can be no offence under Section 306 IPC. Hon'ble Apex Court in the matter of Sanju @ Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court Cases 371 in paragraph No.12 has observed as under: - “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 unadvisable 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 in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.” Hon'ble Apex Court Bhagwan Das Vs. Kartar Singh & Ors., 2007(11) SCC 205 in paragraph No.15 has held as under: - “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 6 CRR No. 950 of 2010 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 306 IPC read with Section 107 IPC.” Hon'ble Apex Court in the matter of Sohan Raj Sharma Vs. State of Haryana, AIR 2008 SCW 3202 in paragraph Nos. 10 and 11 has held as under: - “10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be 7 CRR No. 950 of 2010 punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough.” Recently, the Hon'ble Apex Court in the matter of SS Chheena Vs. Vijay Kumar Mahajan and another, 2010(4) RCR (Criminal) 66 in paragraph Nos. 27, 28 and 29 has held as under: - “27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009(4) R.C.R. (Criminal) 196 : 2009(5) R.A.J. 278: (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 8 CRR No. 950 of 2010 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. 28. 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 that act must have been intended to push the deceased into such a position that he committed suicide. 29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day- 9 CRR No. 950 of 2010 to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.” In the present case, it is said that the complainant – Dalip Singh Setia was sitting on the railway line and on asking, he has disclosed to the gateman that he is sitting to commit suicide because accused-persons are not refunding loan taken from him and are selling the joint land under his possession and cultivation. It is nowhere stated that accused have ever instigated him to commit suicide. Non-payment of outstanding loan amount or property dispute over the joint property by no means can be said to be abetment or instigation to commit suicide. However, in the present case, police preferred to file challan and learned Trial Court proceeded to frame charges in mechanical manner against the accused to face trial for offences punishable under Sections 306/511 and 506 IPC. In the opinion of his Court, neither Investigating Officer nor learned Additional Sessions Judge, have cared to look into the ingredients of Sections 107 and 306 IPC. Casual approach was adopted by the Investigating Officer, as well as, by the Court, which cannot be appreciated. 10 CRR No. 950 of 2010 This Court further fails to understand as to how case under Section 506 IPC is made out. Merely because accused are not refunding loan amount and are disturbing the possession and cultivation of the complainant over the joint property would not attract the ingredients of Section 506 IPC. Present is a case of fallacious and malicious prosecution. Investigating Officer, as well as, Criminal Courts must bear in mind that registration of criminal case and asking the citizen to face criminal trial causes mental trauma, agony and loss of reputation. Personal liberty is always at stake in criminal cases. No citizen should be asked to face the trial for an offence which is not at all made out. Criminal Court should not act as a rubber stamp of the Investigating Officer. Before framing charge, Court must look into the material collected by the Investigating Officer to find out as to whether there is sufficient material to frame charge against the accused. If entire material is accepted in toto would not lead to the conviction discharge must follow. Framing of charges in such a case would be totally unjustified. I am fully satisfied that not only police filed wrong charge-sheet before the Court, but, learned Trial Court also failed to appreciate that even if entire story of 11 CRR No. 950 of 2010 the prosecution is accepted, it would not lead to the conviction. Present revision petition is allowed. Impugned order, as well as, charges are hereby quashed. Accused are discharged. State must pay Rs.10,000/- each to the every accused as compensation for false and malicious prosecution. State shall be at liberty to recover the said amount from the Investigating Officer after holding inquiry against him. March 16, 2011 ( Alok Singh ) vkd Judge 12