ORDER
Rakesh Saksena, J.
1. Applicant has filed this petition under Section 482 of the Code of Criminal Procedure for quashing proceedings arising out of Crime No. 206/07 of Police Itarsi, now pending before the Judicial Magistrate First Class, Itarsi, as Criminal Case No. 496/06, for the offence under Section 306 of IPC.
2. The facts as alleged by the prosecution are that petitioner who belonged to an upper caste family (Dubey) married to Mukesh Arya (deceased) who belonged to Scheduled Caste community in the year 2003. Their marriage was opposed by their family members. Deceased was working on the post of Civil Judge. At the relevant time, he was posted as Civil Judge at Itarsi. Petitioner’s in-laws did not approve the marriage. A child was born out of the wedlock in the year 2004. Petitioner was well educated and wanted to appear in the examination for the post of Civil Judge to be held in the year 2007. For the purpose of taking coaching, she was temporarily residing at Bhopal with her parents. On 15-3-2007, in the night, Mukesh Arya (deceased) consumed some poisonous substance. He was taken to hospital at Itarsi, where he was treated by Dr. Sunil Mantri and Dr. Tikariya, but they suggested that he should be taken to Bhopal, then Mr. Dinkar and other fellow Judges took Mukesh Arya to Bhopal and got him admitted in Ayushman Hospital. In the same night, petitioner was informed about the serious condition of her husband. Despite all efforts and the treatment, on 18-3-2007, Mukesh Arya expired. Dr. Pramod Shrivastava of Ayushman Hospital sent report to Police Habibganj, Bhopal. On such report, a merg was registered. During merg enquiry, the statements of Kailashibai, mother, Laxmi Narayan father of the deceased and other witnesses were recorded. On enquiry, it was found that petitioner used to harass the deceased and subjected him to mental cruelty, as she belonged to higher caste and she did not like association of deceased with his parents and relatives. Thus, she abetted deceased to commit suicide. Therefore, a case under Section 306 of IPC was registered against her on 13-4-2007.
3. After investigation, charge-sheet was filed before the Court of Magistrate.
Learned Senior Counsel Shri Satish Sharma for the petitioner submits that on the basis of evidence and material produced by the prosecution on record, prima facie no ingredients constituting offence under Section 306, IPC are made out. He submits that in the allegations made by witnesses against the petitioner, no element of provocation, incitement, instigation, inducement or compulsion is found, which could have led the deceased to commit suicide. Merely trivial domestic skirmishes cannot be said to amount the abetment. Since the basic elements of the offence under Section 107, IPC, which are necessary for constituting offence under Section 306 are absent, no criminal prosecution can be launched against the petitioner.
4. Shri Pramod Choubey, learned Government Advocate, on the other hand, submits that at the present stage the evidence and material adduced by the prosecution cannot be critically and analytically scrutinized so as to find whether the evidence on record is sufficient for conviction of the petitioner. The evidence of witnesses recorded by police during investigation clearly discloses that petitioner had abetted the deceased to commit suicide.
5. On perusal of the written report submitted by Smt. Kailashi Arya, mother of deceased, and her statement recorded under Section 161 of Cr.P.C., it is seen that petitioner used to insult Mukesh Arya by talking in objectionable and insulting manner. Mukesh Arya was very much frustrated by marrying petitioner. While he was in the hospital, he told her that he was fed up with Aarti and there was no aim left for his life, therefore, he was going. For death of her son, petitioner was responsible. Petitioner used to quarrel on trivial matters with her son. If Mukesh talked to them, petitioner objected to it saying that they were not of the same standard. They did not even know the etiquettes of decent living. On such talks, frequent altercations took place between them. When she enquired from the petitioner about the cause of Mukesh’s taking poison, she told her that there had been some altercation between them at about 10.00 O’clock in the night. When the petitioner was at hospital, she instructed to a peon to remove the glass from which the Mukesh Arya consumed the milk. Kailashibai, in her statement disclosed that from some time petitioner was living with her parents at Bhopal in MACT quarters, her son was living alone at Itarsi. In the night of 16-3-2007 petitioner had informed them on telephone that the condition of Mukesh was serious and he was brought in Ayushman Hospital, Bhopal. She had asked them to reach at hospital. At hospital, Aarti had asked them to not to say anything to anybody, as several people including video-graphers were there. According to this witness, at the time of cremation of the dead body, petitioner and her family members did not come to their house. Only petitioner had come for a few minutes at the cremation ground.
6. Laxmi Narayan, father of deceased stated that on 16-3-2007 when he was at his home, at about 1.00 O’clock, he received telephonic call from Aarti that condition of Mukesh was serious and she asked him to reach Ayushman Hospital. When he reached at the hospital, Mukesh was not talking. After about two hours he could speak. He told him that he had drunk milk containing poison because there had been some altercation between him and his wife on telephone. He had consumed poison due to tension.
7. Smt. Vinita Sunehre, sister of deceased stated that petitioner did not behave with her parents respectfully. She did not like Mukesh to go at parents house. She even used abusive words for Mukesh. The relations between Mukesh and petitioner were not cordial. They frequently used to quarrel. When she asked the petitioner, she told her that such quarrels were frequent, but she did not know as to why Mukesh took such a serious step. She insulted her too.
8. Witness P.N. Dinkar, who is also a member of Judicial Service, stated that at about 10.40 p.m. Mukesh informed him on telephone that he was not feeling well and he wanted to be taken to hospital. He went to the house of Mukesh and took him to hospital. Dr. Sunil Mantri, Dr. Tikariya and Dr. Dayal treated him, but suggested that he should be taken to any hospital at Bhopal. When he reached hospital at Bhopal, petitioner, her brother and father were present there.
9. Witness Ram Narayan, who happened to be a peon in the Court of Judicial Magistrate, Itarsi, stated that the petitioner was residing at Bhopal since last one month, he, therefore, was cooking food for deceased. On 15-3-2007, deceased and another Judge Mr. Dinkar had gone to Hoshangabad. He had cooked the food for deceased and kept inside the house as one key of the house was with him. When he came at the house on 16-3-2007, the house was sealed. He came to know that Shri Arya was admitted in the hospital at Bhopal.
10. The question before this Court is as to whether on the basis of above evidence an offence of abetment to commit suicide is made out against the petitioner. “Abetment” is essential ingredient for making out the offence under Section 306 of IPC. Section 107 of IPC defines ‘abetment’. Section 107 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 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.
11. In case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh , the Apex Court considered several decisions and held that the charge for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased, particularly when ingredients of abetment are not attracted on the statements of deceased or witnesses. The Apex Court considered as under:
9. In Swamy Prahaladdas V. State of M.P. and Anr. 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306, IPC, on the ground that the appellant during the quarrel is said to have remarked the deceased ‘to go and die’. This Court was of the view that mere words uttered by the accused to the deceased ‘to go and die’ were not even prima facie enough to instigate the deceased to commit suicide.
10. In Mahendra Singh v. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306, IPC basically based upon the dying declaration of the deceased, which reads as under:
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 those reasons and being harassed I want to die by burning.
11. This Court, considering the definition of ‘abetment’ under Section 107, IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
12. In Ramesh Kumar v. State of Chhattisgarh , this Court while considering the charge framed and the conviction for an offence under Section 306, IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:
A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires 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 for abetting the offence of suicide should be found guilty.
It was ultimately found that even if accused did tell the deceased ‘to go and die’, that itself did 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 words uttered in a quarrel in a spur of the moment cannot be taken to be uttered with mens rea. It is just a fit of anger and emotional distress, without intending any consequence.
12. In the present case, it has been stated by Kailashibai and also by Ram Narayan that petitioner was residing at Bhopal since about a month, whereas deceased was living at Itarsi. At the time of incident also deceased was not with the petitioner. Even if some hot altercation or quarrel took place between them on telephone, in the absence of any material to indicate the nature of conversation, it cannot be held that the petitioner incited or instigated the deceased to commit suicide.
13. In case of R.P. Kapoor v. State of Punjab the Supreme Court summarized some categories of cases in which the criminal proceedings can be quashed:
(1) Where it manifestly appears that there is a legal bar against institution or continuance, e.g., Want of sanction;
(2) Where the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(3) Where the allegations constitute an offence, but there is no legal evidence adduced or evidence adduced clearly or manifestly fails to prove charge. It has however been emphasized that while exercising jurisdiction under Section 482 of the Code High Court would not ordinarily embark upon an enquiry whether evidence in question is reliable or not or whether at a reasonable appreciation of its accusation would not be sustained. That is the function of the Trial Court. Judicial process should not be an instrument of oppression or needless harassment.
Scope of exercise of powers under Section 482 of the Code was also considered in the case of State of Haryana v. Bhajanlal 1992 Supp. (1) SCC 355, wherein in Para 102, it was held that those powers can be exercised where 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. Similarly, the powers can be exercised in a case where a criminal proceeding is manifestly attended, with malafides 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.
14. On examining the allegations made against the petitioner in the evidence and material adduced by the prosecution with the charge-sheet, it is apparent that there is absolutely nothing to indicate that petitioner in any manner wanted or intended that her husband (deceased) should commit suicide. She had married to Mukesh knowing full well that he belonged to Scheduled Caste of the community. They had lived happily for a long period. A child was also born out of wedlock. The petitioner is an educated lady and with a view to appear in the examination of Civil Judge she had temporarily left her husband’s house for joining coaching at Bhopal. There does not appear anything to show that deceased did not like her, to appear in such examination. Merely because the petitioner objected her husband to keep close association with his parents and other family members, it cannot be assumed that she wanted that he should commit suicide. Even if there had been frequent altercations and quarrels between them on that count, it cannot be held that she incited or instigated her husband to commit suicide.
15. Accepting the allegations made against the petitioner by the prosecution as it is, they do not constitute the offence of abetment by her to commit suicide. In this view of the matter, this Court is of the view that there is absolutely no material on record, sufficient for continuing the criminal prosecution against the petitioner. The factual position clearly shows that the criminal proceeding pending against the petitioner is nothing but a sheer abuse of process of law, which should be quashed by exercising powers under Section 482 of Cr.P.C.
16. Accordingly, this petition is allowed. The proceeding of Criminal Case No. 496/06 for the offence under Section 306 of IPC, pending in the Court of Judicial Magistrate First Class, Itarsi, against the petitioner, is quashed.
