Punjab-Haryana High Court

Mukesh Kher vs State Of Haryana & Anr on 22 July, 2019

Equivalent citations: AIRONLINE 2019 P AND H 1003

CRM-M-8661-2016 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.

CRM-M-8661-2016 (O&M)
Date of Decision: 22.7.2019

Mukesh Kher

..........PETITIONER(s).

VERSUS

State of Haryana and anther

........RESPONDENT(s).

CORAM:- HON'BLE MR. JUSTICE RAJ SHEKHAR ATTRI

Present: Mr. Mukesh Kher, Advocate,
in person with
Mr. Jatinderpal Singh, Amicus Curiae

Mr. Vikas Chopra, DAG, Haryana.
*******

RAJ SHEKHAR ATTRI, J.

This is a petition under
Section 482
of the Code of Criminal

Procedure for quashing of FIR No.15 dated 17.1.2016 registered at Police

Station DLF Phase-I, Gurgaon, Haryana and all the

consequent/subsequent proceedings qua the petitioner.

The petitioner is a senior citizen and is a lawyer by

profession having more than 44 years standing at the bar.

Deceased-Keshav was working as a domestic servant with

Shri Deepak Malhotra. He found that said deceased Keshav was cleaning

the car of its owner at about 1:00 p.m. on the ill-fated day. After cleaning

the car, he put it in reverse gear and after taking turn, the car hit the

flower pots, which were kept in front of the house of the petitioner and

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those were broken.

It is further alleged that thereafter, the owner of the house

known as Kher came out of the house and took out Keshav deceased from

the car and threaten him and gave him him blows and used abusive

language against him. The petitioner also demanded price of the broken

flower pots. It is further alleged that the petitioner caught hold of the

deceased from his hair who fell on the ground and all this was witnessed

by the above said Deepak Malhotra. He tried to pacify the petitioner but

the petitioner also used bad words qua him and also threatened Deepak

Malhotra .

Thereafter, Keshav deceased went to his room and at about

3:00 p.m. it was found that he was hanging and committed suicide. On his

statement, FIR was registered.

After completion of investigation, the challan was submitted

before the Area Magistrate .

I have heard learned counsel for the parties and gone through

the record.

Learned counsel for the petitioner has submitted that the

petitioner and the deceased were known to each other; as per allegations

in the FIR, the deceased hit the car in the house of the petitioner, due to

which, it caused damage to the flower pots and the petitioner demanded

price of the broken flower pots. It was tortuous act of the deceased and

due to this reason, there was an altercation between the petitioner and the

informant. There is no proximate nexus between the act of the deceased

and commission of suicide and the petitioner has been falsely implicated

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on behalf of his neighbour Deepak Malhotra.

It has been further argued that in fact the deceased

committed suicide due to the conduct of his owner Shri Deepak Malhotra

but in order to save his skin, the informant has projected a false story and

got lodged the FIR against the petitioner from one Mr. Bishan Kumar

who is the relative of the deceased.

It has been further argued that in fact on 17.1.2016, i.e., the

ill-fated day, the petitioner had gone to Gurudwara Bangla Sahib Ji, New

Delhi and distributed langer to the first batch and he saw one Nepali

domestic help in front of his house in his car, who was in the process of

driving back the car in front portion of the house of the petitioner, as a

result of which, four flower pots placed outside the house were totally

smudged and the petitioner reprimanded him and went inside his house.

Even the petitioner was not known about the incident.

It has been further argued that there was absolutely neither

any intention nor mens rea with regard to reprimanding the deceased and

from a bare perusal of the material available on the record, no offence is

made out with regard to abetment to suicide and there is absolutely no

nexus between the acts of the petitioner and the suicide by the deceased.

According to him, prima facie, no case is made out against the petitioner

to face trial for offence under
Section 306
of Indian Penal Code.
In

support of his contentions, he placed reliance on the judgments of the

Hon'ble Supreme Court in
Madan Mohan Singh v. State of Gujarat &

anr
; 2010 (
8) SCC 628, M. Mohan v. State Tr. Dy. Supdt. Of Police
;

2011 (3) SCC 626, Ramesh Kumar v. State of Chhattisgarh; 2001 (4)

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RCR (Criminal) 537, Rajesh v. State of Haryana; 2019 (1) RCR

(Criminal) 847 and of this Court in CRM-M-2068 of 2012 ;
A.R.

Madhav Rao and others v. State of Haryana and another
decided on

22.5.2018.

On the other hand, learned State counsel has vehemently

contended that the petitioner not only reprimanded the deceased but also

abused him, given blows and demanded the price of dismantled flower

pots and the acts, omission and commission of the petitioner amounts to

instigation.

This Court has given its thoughtful consideration to the rival

contentions.

The suicide is as old as civilization itself. It is self murder or

self destruction or self killing and it is done in many ways in which life

itself can be destroyed. The reasons for the same are also numberless.

Now-a-days, most of unfortunate deaths of persons occur due to the

trivial matters, such as road-rage incidents, undue anguish and even street

quarrels.

Section 306
of the Indian penal code penalises abetment of

suicide.
Section 306
prescribes punishment for "abetment of suicide"

while
section 309
punishes attempt to commit suicide. Abetment of

attempt to commit suicide is outside the preview of
section 306
and it is

punishable only under 309 read with
section 107
of IPC. Thus even

where the punishment for attempt to commit suicide is not considered

desirable, its abetment is made a penal offence.
Section 306
of the Indian

Penal Code penalises abetment of suicide.

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Section 306
reads as : 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 not

exceeding ten years, and shall also be liable to fine."

For conviction under this section, the prosecution has to

prove that :

1. The deceased committed suicide,

2. The accused instigated or abetted for committing suicide,

and

3. Mens-Rea of the accused.

ABETMENT is an offence as defined under
section 107
of

Indian Penal Code, 1860. Abetment in its literal sense means,

the instigation of a person to do (or not to do) an act in a certain way, or

aid given by some person to another either of his own accord or under the

provisions governing joint and constructive liability. Abetment involves a

mental process of instigating a person or intentionally aiding a person in

doing of a thing.

Abetment of suicide involves a mental process of instigating

a person or intentionally aiding a person in committing suicide. 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 is very much 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 a direct

act which led the deceased to commit suicide seeing no option and that

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act must have been intended to push the deceased into such a position

that he committed suicide. No straight jacket formula can be laid down to

find out as to whether in a particular case there has been instigation,

which forced the person to commit suicide. In a particular case, there may

not be direct evidence in regard to instigation, which may have direct

relationship between
section 306
and
Section 107
. Therefore, in such a

case, an inference has to be drawn from the circumstances and it is to be

determined whether circumstances had been such, which in fact had

created the situation that person committed suicide. 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.

In the case in hand, it is undisputed that the petitioner had no

prior enmity either with the deceased (who was a domestic help with

Deepak Malhotra) or his master.

On a bare perusal of the material available on the record, it

transpires that it was a street quarrel between the deceased and the

petitioner, which erupted due to the tortuous act of the deceased. The

deceased appeared to be a minor. Probably he was not having any driving

licence and it seems that he did not know driving. He drove the car in

reverse motion which hit some part of the house of the petitioner and

dismantled some flower pots belonging to the petitioner.

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It is alleged that the petitioner abused him, reprimanded him

and demanded price of the dismantled flower pots.

If we go through the entire incident, then the main ingredient

of the offence of abetment i.e. mens rea is missing. A person aggrieved

by the tortuous act of the wrong-doer can claim and demand

compensation of the wrong done to his property. If he demands so and

the wrong door commits suicide, it does not amount to abetment to

suicide. Similarly, use of abusive language alone without any mens rea

does not amount to abetment to suicide.

In
P. Sreenivasulu v. State of A.P.
; 2004 Criminal Law

Journal 2718, when there was a dying declaration of the deceased that the

accused abused her and she committed suicide,it has been observed in

para 14 as under : -

"14. I am of the considered view that abuses cannot amount

to abetment, unless something more is done in pursuance of

the said act of abuses. I am also of the consider view that the

present case does not fall under
Section 306
, I.P.C. as there

is no abetment to commit suicide. In fact no charge has been

framed and the accused was not made aware of the offence

for which he was tried. It is the duty of the Court to make the

accused aware of the offence for which he is being tried, lest

it may cause prejudice to the accused. If the Court below

feels that the case had been made out under
Section 306
,

I.P.C. it ought to have framed a charge under
Section 306
,

I.P.C. and recorded the plea of the accused and then

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proceeded with further trial, instead of giving punishment

directly for the offence under
Section 306
, I.P.C. More so,

during the course of 313, Cr. P. C. examination the accused

was not questioned regarding the alleged offence under

Section 306
, I.P.C. which caused prejudice to the accused. In

this case P.Ws. 1 to 3 state that it is a stove accident. The

dying declaration recorded by the Magistrate shows that

because of the abuses of the accused, she committed suicide

by pouring kerosene over herself and setting fire. In fact

there is no abetment to commit suicide. I am of the

considered opinion that uttering of abuses will not amount to

provocation to commit suicide and it does not constitute

abetment. It is contended that after the police have given the

requisition to record dying declaration, the case was

registered. Hence, there is every possibility of anti-dating

F.I.R. In my opinion, no offence is made out under

Section 306
, I.P.C. and there is no need to advert to

investigation aspect, as it loses much of its importance.

The instigation is a part of abetment but instigation requires

the mental element of intention as well as mens rea.

The term instigation under
section 107
IPC has been

explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi,

2009(4) R.C.R.(Criminal) 196 : (2009) 16 SCC 605: (2010) 3 SCC

(Crl.) 367) as follows:

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"16. Speaking for the three-Judge Bench in Ramesh Kumar case

[2001(4) R.C.R.(Criminal) 537 : (2001) 9 SCC 618 : 2002 SCC

(Cri) 1088], R.C. Lahoti, J. (as His Lordship then was) said 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. 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 to be inferred. A word uttered in a fit of

anger or emotion without intending the consequences to actually

follow, cannot be said to be instigation.

17. Thus, to constitute "instigation", a person who instigates

another has to provoke, incite, urge or encourage the doing of an

act by the other by "goading" or "urging forward". The dictionary

meaning of the word "goad" is "a thing that stimulates someone

into action; provoke to action or reaction" (see Concise Oxford

English Dictionary); "to keep irritating or annoying somebody until

he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.)."

Words uttered in a fit of anger or omission without any

intention cannot be termed as instigation.

In
Rajesh v. State of Haryana
; 2019 (1) RCR (Criminal)

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847, it has been observed in para 8 as under : -

"8. Conviction under
section 306
IPC is not sustainable on

the allegation of harassment without there 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. In order to bring a case within the purview of

section 306
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."

In
Gurcharan Singh v. State of Punjab
; 2017 (1) RCR

(Criminal) 118, Hon'ble Supreme Court has observed in para 28 to 30 as

under : -

"28. The pith and purport of
Section 306
I.P.C. has since

been enunciated by this Court in
Randhir Singh v. State of

Punjab
2004(4) R.C.R.(Criminal) 740 : (2004)13 SCC 129,

and the relevant excerpts therefrom are set out hereunder.

"12. Abetment involves a mental process of instigating

a person or intentionally aiding that person in doing of

a thing. In cases of conspiracy also it would involve

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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 I.P.C.

13.
In
State of W.B. v. Orilal Jaiswal
, 1994(3) R.C.R.

(Criminal) 186 : (1994) 1 SCC 73, this Court has

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 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."

29. Significantly, this Court underlined by referring to its

earlier pronouncement in
Orilal Jaiswal
(supra) that courts

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have to be extremely careful in assessing the facts and

circumstances of each case to ascertain as to whether cruelty

had been meted out to the victim and that the same had

induced the person to end his/her life by committing suicide,

with the caveat that if the victim committing suicide appears

to be hypersensitive to ordinary petulance, discord and

differences in domestic life, quite common to the society to

which he or she belonged and such factors were not expected

to induce a similarly circumstanced individual to resort to

such step, the accused charged with abetment could not be

held guilty.

The above view was reiterated in
Amalendu Pal

@ Jhantu v. State of West Bengal
2010(1) R.C.R.

(Criminal) 643 : 2010(1) Recent Apex Judgments (R.A.J.)

184 : (2010) 1 SCC 707.

30. That the intention of the legislature is that in order to

convict a person under
Section 306
I.P.C., there has to be a

clear mens rea to commit an offence and that there ought to

be an active or direct act leading the deceased to commit

suicide, being left with no option, had been propounded by

this Court in
S.S. Chheena v. Vijay Kumar Mahajan
(4) R.C.R.(Criminal) 66 : 2010(4) Recent Apex Judgments

(R.A.J.) 629 : (2010) 12 SCC 190."

So far as the quashing of the FIR and consequential

proceedings are concerned, the Hon'ble Supreme Court in
State of

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Haryana and others v. Ch. Bhajan Lal and Ors.
, 1992 AIR (SC) 604

has made the following observations:-

"In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the

principles of law enunciated by this Court in a series of

decisions relating to the exercise of the extraordinary power

under
Article 226
or the inherent powers under
Section 482

of the Code which we have extracted and reproduced above,

we give the following categories of cases by way of

illustration wherein such power could be exercised either to

prevent abuse of the process of any Court or otherwise to

secure the ends of justice, though it may not be possible to

lay down any precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid formulae and

to give an exhaustive list of myriad kinds of cases wherein

such power should be exercised.

1. Whether the allegations made in the First

Information Report or the complaint, even if

they are taken at their face value and accepted

in their entirety do not prima facie constitute

any offence or make out a case against the

accused.

2. Where the allegations in the First Information

Report and other materials, if any,

accompanying the F.I.R. do not disclose a

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cognizable offence, justifying an investigation

by police officers under
Section 156 (1)
of the

Code except under an order of a Magistrate

within the purview of
Section 155 (2)
of the

Code.

3. Where the uncontroverted allegations made

in the FIR or complaint and the evidence

collected in support of the same do not disclose

the commission of any offence and make out a

case against the accused.

4. Whether, the allegations in the F.I.R. do not

constitute a cognizable offence but constitute

only a non-cognizable offence, no investigation

is permitted by a police officer without an order

of a Magistrate as contemplated under
Section

155 (2)
of the Code.

5. Where the allegations made in the F.I.R. or

complaint are so absurd and inherently

improbable on the basis of which no prudent

person can ever reach a just conclusion that

there is sufficient ground for proceeding against

the accused.

6. Where there is an express legal bar engrafted

in any of the provisions of the Code or the

concerned Act (under which a criminal

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proceeding is instituted) to the institution and

continuance of the proceedings and/or where

there is a specific provision in the Code or the

concerned Act, providing efficacious redress for

the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly

attended with mala fide and/or where the

proceeding is maliciously instituted with an

ulterior motive for wreaking vengeance on the

accused and with a view to spite him due to

private and personal grudge."

In the instant case, the element of instigation is completely

missing. The petitioner had neither an enmity with the deceased nor he

had any ill-will towards him. He was the lawful owner of the flower pots.

He reprimanded the deceased for the loss caused by the latter's act and in

case he demanded cost of the broken flower pots, it was his right and it

will never be taken as an instigation to commit suicide. Similarly, if he

had lost his tamper on seeing damage to his property and called names to

deceased, it will not amount to instigation. Thus, FIR as well as

subsequent proceedings arising out of the FIR qua the petitioner are

nothing but the abuse of the process of law and those are not tenable and

liable to be quashed.

Consequently, by exercising the powers under
Section 482
of

the Code, this Court quashes FIR No.15 dated 17.1.2016 registered at

Police Station DLF Phase-I, Gurgaon, Haryana and all the

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consequent/subsequent proceedings qua the petitioner.

Thus, the present petition stands accepted accordingly.

( RAJ SHEKHAR ATTRI)
July 22, 2019 JUDGE
Paritosh Kumar

Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No

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