Criminal Misc. No. M-31173 of 2008 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Misc. No. M-31173 of 2008 (O&M)
Date of Decision:06.02.2009
Yash Kumar Arora and another
.....Petitioners
Vs.
State of Punjab and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. P.S. Ahluwalia, Advocate for the petitioners.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
Mr. Animash Sharma, Advocate for the complainant.
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JUDGMENT
HARBANS LAL, J.
This petition has been moved by Yash Kumar Arora as well as
his brother Surinder Kumar Arora under Section 482 of the Code of
Criminal Procedure for quashing of FIR No.246 dated 8.11.2008 registered
at Police Station Bhulath, District Kapurthala under Section 306 of IPC
along with all subsequent proceedings.
The facts in brief are that Chetan Bajaj made statement stating
that “We are two brothers and one sister. I along with my brother Sunil
Bajaj run the shop of Commission Agent at Bhatha Bazar. Before the
purchase of paddy by the Government, Yashpal Arora and Surinder Kumar
Arora son of Bhagat Ram Arora resident of Ward No.7 Bhulath, owners of
Bharat Rice Mill, Bhulath kept their paddy crop in their sheller through our
shop of Commission Agent by saying that paddy crop was required to be
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sold at the rate fixed by the government through your sheller and we are
taking the same away and that the payment of the same would be made in
the account of the government through official account. But after the
purchase of paddy crop, the aforesaid owner of sheller, neither got the
paddy crop entered in the account of the government nor got made payment
of the same through official account. When we asked them to make the
payment through official account of the government, the aforesaid persons
assured us that they would make payment of us, which was approximately
to the tune of Rs.13 lacs, but they did make any payment to us out of the
said payment. When we asked them about the same, they refused to make
payment. As a result of it, our business had suffered to a great extent. The
Zimidars were visiting us and demanding their money back from us daily.
Today, I along with my brother Sunil Bajaj and partner Jagdish Kumar son
of Munshi Ram resident of Ward No.4 Bhulath went to the sheller to get our
money back from Yashpal and Surinder Kumar owners of Bharat Rice Mill,
Bhulath. At that time, it would be around 2:30/ 3:00 P.M, when both the
aforesaid brothers were found present in the above said sheller. They
refused to pay back our amount. They turned us out of their sheller forcibly
and insulted us. They said that they did not owe anything to us and that
they can do whatever they can do by approaching anybody of their choice.
At this, my brother Sunil Bajaj was upset to a great extent and due to the
said frustration, he consumed some poisonous substance. When I came to
know about it, I along with my partner Jagdish Kumar made an arrangement
for vehicle and took my brother Sunil Bajaj to Berry Hospital, Jallandahr to
save him. As the condition of my brother was serious, so they did not admit
him and advised us to take him to CMC, Loudhiana. We were taking my
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brother to CMC Hospital, Ludhiana, where my brother succumbed to his
injuries on the way just ahead of Rama Mandi, Jallandhar. After taking his
dead body, we were coming back to Bhulath where you (referring to ASI
Goldy Virdi) met us on the way near Kartarpur. My brother Sunil Bajaj
was upset on account of insult meted out to him by the owners of sheller
and on account of refusal regarding payment of money of paddy and due to
it, he had consumed some poisonous substance and died.” That the case of
the petitioners does not fall under any of the clauses provided under Section
107 of IPC. In the present case, commission of suicide was not instigated
by the present petitioners in any manner. Even if the allegations are
believed to be true, these relate to commercial dispute between the parties.
The mere non-payment of money will not coerce a normal man to commit
suicide. As a matter of fact, the present petitioners had nothing to do with
the death of the deceased and have been falsely implicated due to
professional rivalries. That in the present case, both the parties have entered
into a compromise due to intervention of respectables. The misguided
suspicion on the basis of which the complainant party got registered the FIR
has been cleared. In these premises, the afore-referred FIR may be quashed.
I have heard the ld. Counsel for the parties. Mr. P.S.
Ahluwalia, Advocate appearing on behalf of the petitioners initially urged
that a glance through Annexure P.4 would reveal that the parties have
compromised the matter and that being so, in view of the ratio decidendi
laid down by this Court in re: Kulwinder Singh v. State of Punjab, 2007
(3) Recent Criminal Reports (Criminal) 1052 and Ashwani Kumar v.
State of Punjab, 2008 (1) Recent Criminal Reports (Criminal) 1034, the
FIR may be quashed.
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I have given a deep and thoughtful consideration to these
submissions. In re: Manoj Sharma v. State and others, 2008(4) Recent
Criminal Reports (Criminal) 827, the Apex Court has held as under:-
“There can be no doubt that a case under Section 302 IPC or
other serious offences like those under Sections 395, 307 or
304B cannot be compounded and hence proceedings in those
provisions cannot be quashed by the High Court in exercise of
its power under Section 482 Cr.P.C or in writ jurisdiction on
the basis of compromise. However, in some other cases, (like
those akin to a civil nature) the proceedings can be quashed by
the High Court if the parties have come to an amicable
settlement even though the provisions are not compoundable.”
Adverting to the instant case, needless to say, the FIR has been
registered under Section 306 of IPC. In terms of Manoj Sharma’s case
(supra), this FIR cannot be quashed on the basis of compromise. At this
juncture, Mr. Ahluwalia urged with great eloquence that the allegations in
the FIR do not constitute abetment as defined in Section 107 IPC and that
being so, even on merits this FIR is liable to be quashed. To drive home
this point, he has relied upon Sanju alias Sanjay Singh Sengar v. State of
Madhya Pradesh, 2002 AIR (SC) 1998, Bhagwan Dass v. Kartar Singh
and others, 2007 AIR (SC) 2045, Paramjeet Singh Chawala v. State of
M.P., 2007 Criminal Law Journal 3343, Ram Naresh and another v.
State of MP and others, 2002 (3) Recent Criminal Reports (Criminal)
52, Kartar Singh and others v. Central Bureau of Investigation, 2006
Criminal Law Journal 4099.
I have given a deep and thoughtful consideration to these
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submissions. In the semantics of Section 107 of IPC abetment means that a
person abets the doing of a thing, if he firstly, instigates any person to do
that thing; 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 an act or illegal omission, the doing
of that thing.
In a nutshell, the allegations in the FIR are that the deceased
was upset on account of insult meted out to them by the petitioners apart
from refusal to make the payment of paddy. To be noticed is as to whether
these allegations fit in with the above referred ingredients of Section 107 of
IPC. Firstly, there are no allegations to the effect that the petitioners had
instigated the deceased to do a particular thing. Secondly, there are no
allegations in the terms that the petitioners had intentionally aided the
deceased to commit suicide. The act of offering insult or refusal to pay
money independently or individually or collectively do not fall within the
ambit of abetment. The allegations of conspiracy are not there. In re:
Sanju alias Sanjay Singh Sengar (supra), the quarrel ensued between the
accused and the husband of his sister. The former told the latter to go and
die. The latter committed suicide on the third day of quarrel. The Apex
Court observed that “it cannot be held that the suicide was direct result of
quarrel. The charge of abetment against the accused was quahsed In re:
Bhagwan Dass (supra), the wife could not give birth to a child for seven
years. When she gave birth to a female child, she was taunted for bringing
bad luck. She committed suicide. The Apex Court ruled that the offence of
abetment under Section 306 of IPC read with Section 107 of IPC is not
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made out. In re: Paramjeet Singh Chawala (supra), the person who had
granted loan to the borrower had demanded the loan amount from the latter.
The Supreme Court laid down that the demand of loan amount does not
itself prove the fact of instigation to deceased borrower for commission of
suicide. The order framing charge under Section 306 of IPC against the
accused (loaner) was set aside. In re: Ram Naresh and another (supra),
the deceased was unable to repay the loan amount. The accused degraded
the deceased by making persistent demands and threatened him to vacate the
house. The deceased committed suicide. It was held that the offence of
abetment was not made out. In re: Kartar Singh and others (supra), the
deceased committed suicide by hanging herself from ceiling of a room in
the matrimonial home. There were allegations of cruelty and harassment
against the petitioners – inlaws. It was held that there was no material
showing that the petitioners had mens-rea to drive the deceased to commit
suicide.
Reverting back to the facts of the current case, the record is
quite barren to show mens-rea on the petitioner’s part to drive the deceased
to commit suicide. They were to gain nothing by his death. It is a common
place experience that the utterances attributed to the petitioners too often are
made by the borrower to the loaner on vice-versa. The brother of the
deceased was too with him. But he did not take the same words to his heart.
There is nothing to reveal that the petitioners instigated, goaded or incited
the deceased to commit suicide. A word uttered in a fit of anger or emotion
without intending the consequences to actually follow cannot be said to be
instigation. Here in this case as alleged, the petitioners- accused turned out
the deceased as well as his brother from the sheller forcibly and insulted
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them by saying that they did not owe anything to them and that they can do
whatever they can do by approaching anybody of their choice. Ordinarily, a
normal man in such a situation would not resort to take his own life. If the
petitioners had offered insult or refused to pay money and had expelled the
deceased as well as his brother forcibly from their sheller, the latters could
have taken recourse to law. The commission of suicide was unwarranted in
such a situation. The stated words would have been uttered in a fit of anger
or omission, but without intending the consequences to actually follow.
Consequently, the same do not constitute instigation. 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. The Courts should
be extremely careful in assessing the facts and circumstances of each case.
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 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.
(See State of West Bengal v. Orilal Jaiswal, 1994(3) Recent Criminal
Reports (Criminal) 186.) The deceased appeared to be hypersensitive to
ordinary petulance, discord and differences in ordinary life.
In the ultimate analysis, it boils down that the FIR does not
reveal commission of the offence. In re: Sanapareddy Maheedhar v.
State of Andhra Pradesh, 2008(1) Law Herald (SC) 101, it has been ruled
that the FIR can be quashed, if the same does not disclose commission of
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any offence or that the allegations contained therein do not constitute any
cognizable offence or that the prosecution is barred by law or the High
Court is convinced that it is necessary to interfere to prevent abuse of the
process of the Court. Coming to the present one, if the proceedings are
allowed to continue, it will amount to abuse of the process of the Court as
the FIR does not constitute any cognizable offence.
As a sequel of the above discussion, this petition is accepted
and the FIR No.246 dated 8.11.2008 registered at Police Station Bhulath
District Kapurthala under Section 306 of IPC alongwith all subsequent
proceedings is quashed.
February 06, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes