Abir Saha & Ors vs State Of West Bengal & Anr

Shivakant Prasad, J

In this revisional application the petitioners have sought to quash the proceedings in connection with Sessions Case No. 35 of 2018 arising out of

Bongaon P.S. Case No. 1201 dated November 05, 2015 under Sections 306/34 of the Indian Penal Code now pending before the Court of learned

Additional District Judge, 1st Court, Bongaon at North 24-Parganas.

An FIR was lodged by the complainant that his daughter namely, Moumita Nath, a student of Class-X had an affair with the petitioner No. 1. On

November 04, 2015 the petitioner No. 1 refused to marry the victim and it was further alleged that the parents of the petitioner No.1 refused to accept

the victim as their daughter in law and passed some comments which lead her to commit suicide by hanging.

On completion of investigation, the investigating agency submitted charge-sheet against three accused persons including the present petitioners vide

Charge-sheet No. 748 of 2016 under Sections 306/34 of the Indian Penal Code. After the case was committed to the Court of Sessions on February

19, 2018 and transferred the case to the Court of the Additional District Judge, Bongaon, North 24-Parganas for trial and disposal.

In this revisional application challenge, inter alia, is on the grounds that the petitioner no. 1 refused to marry a girl of sixteen years and as the parents

of the petitioner refused to give in marriage of the victim with the petitioner no. 1, the victim committed suicide by hanging. From the four corner of

the FIR there is no material to infer that there was any abetment on the part of the petitioners which compelled the victim girl to commit suicide. The

impugned proceeding is malicious and has been filed to wreck vengeance on the societal status of the petitioners.

It is submitted that the neighbours’ statements were recorded under Section 161 of the Code of Criminal Procedure which reflect that the victim

committed suicide as she was rebuked by her parents, hence, no case under Section 306 of the Indian Penal Code has been made out from the side of

the prosecution against the petitioners.

As many as five independent witnesses have been examined by the prosecution. None of the witnesses have made any aspersions against the

petitioners to reveal abetment meted out to the victim to commit suicide. It is submitted that every ill-treatment including humiliation etc. would not fall

with the purview of illegal omission because every omission is not illegal. Some active steps have to be taken by words or action with intent to instigate

inasmuch as encouragement, of necessity, does not amount to aiding or abetting. Abetment implies an intentional abetment. There can be no abetment

if the mens rea is missing.

Question raised in this revision is whether in the facts and circumstances of the case, evidence collected during the investigation, would amount to

mental cruelty compelling the victim to commit suicide?

It is submitted that there can be no abetment in the given case. My attention is invited to the provision of Section 107 of the Indian Penal Code which

defines abetment of thing. The offence of abetment is a separate and distinct offence provided in the Act as offence. A person abets the doing of a

thing, who (i) instigates any person to do that thing; (ii) engages with one or more other 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 (iii) Intentionally aids, by any act or illegal

omission, the doing of that thing. These things are essential to complete abetment as crime. The word ‘instigate’ literally means to provoke,

incite or urge on or bring about by persuasion to do anything. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three

clauses of Section 107 of the Indian Penal Code. Section 107 of the Indian Penal Code 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 punished with the punishment provided of the

original offence. Abetment in Section 107 of the Indian Penal Code means the person abetted. Therefore, the offence for the abetment of which a

person is charged with, the abetment is normally linked with the proved offence. In cases of alleged abetment of suicide there must be proof of direct

or indirect acts of incitement to the commission of suicide.

The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether

the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which

appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution case to continue. The Court cannot

be utilised for any oblique purpose. Where the chances of the conviction and no useful purpose will be served by allowing a criminal prosecution to

continue, the court may quash the proceeding even though it is at a preliminary stage.

It is submitted that the purported allegations made in the petition of complaint against the petitioners are so absurd and inherently improbable that a

prudent person could never reach a just conclusion that there is any prima facie case against the petitioners. The only intention of the complainant is to

wreck the vengeance against the petitioners without any iota of materials.

It is also submitted that the allegations made in the FIR do not disclose any cognizable offence justifying any initiation of such proceeding and the

impugned order passed by the learned Magistrate is perverse and bad in law. The impugned proceeding is intentionally and manifestly initiated with an

oblique motive only to harass the petitioners.

Mr. Navanil De learned counsel appearing for the petitioners assisted by Mr. Pawan Gupta and Ms. Ayantika Roy to buttress his argument referred

to a decision in case of Madhavrao Jiwajirao Scindia and Ors. vs. Sambhajirao Chandrojirao Angre and Ors. reported in AIR 1988 SC 70 9adverting

to the observation made in paragraph 7 thusâ€

“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to

whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features

which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the

basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and,

therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the

special facts of a case also quash the proceeding even though it may be at a preliminary stage.â€​

In case of Pepsi Foods Ltd. and Ors. Vs. Special Judicial Magistrate and Ors. reported in 1998 (1) SC 128 wherein it has been observed that the

magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused

cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when

the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.

In case of G. Sagar Suri and Ors. Vs. State of U.P. and Ors. reported in AIR 2000 SC 75 4wherein it has been observed in paragraph 7 and 8

thusâ€

“7. We do not think that on filing of any application for discharge, High Court cannot exercise its jurisdiction under Section 482 of the Code. In this

connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., [1998] 5 SCC

749 and Ashok Chaturvedi & Ors. v. Shitul H. Chanchani & Anr., [1998] 7 SCC 698, wherein it has been specifically held that though the Magistrate

trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that

the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against

them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.

Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the

matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings

are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused

it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the

Code, Jurisdiction- under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.â€​

The learned counsel for the petitioners also place reliance in case of Swapan Roy and Anr. vs. State of West Bengal and Anr. reported in 2016 (3)

AICLR 6 (Cal.) in support of his case adverting to the observation made in paragraph 6 thusâ€

“6. ………It is settled law that a petulant and hypersensitive act of self annihilation cannot be hinged to every act of criticism made of the victim

in ordinary course of business. There must be a direct and proximate link between the alleged instigation and the commission of suicide by the victim

to bring such act within the penal scope of Section 306 IPC (see Sanju vs. State of M.P., (2002) 5 SCC 371). In the said report the accused exhorted

the victim ""to go & die"" in course of a quarrel and the victim was found dead two days later. It was held that the proximate link between the

exhortation and the act of suicide had snapped and proceeding was quashed. Similarly, in the instant case there is nothing to show when the alleged

taunts or criticism of the victim was made by his elders, that is, the petitioners who are no one other than his maternal uncle and aunt and the act of

self annihilation so as to form a direct nexus between the two. Moreover, as discussed earlier, the contents of the diary exposes a confused mind and

does not disclose a direct act of instigation or goading to commit suicide by the victim. It has been held in a series of authorities if analysis of the

suicide note in the factual backdrop merely discloses ill-treatment or criticism of a hypersensitive victim in ordinary course of human events, the same

cannot be construed to an act of instigation under Section 107 IPC to commit suicide (SeeM odan Mahan Singh vs. State of Gujarat, (2010) 8 SCC

628 and State of Kerala vs.KP Unnikrishnan Nair, (2015) 9 SCC 639.) The ratio of the aforesaid authorities apply with full force to the facts of the

case.â€​

In case of Subha Narayan vs. State of West Bengal & Ors. reported in 2006(3) CHN 651 it has been observed that cannot be denied that to

constitute an offence under Section 306 of IPC, it is not enough that the victim was subjected to some harassment or used to be criticized but

something more than it is necessary. It is necessary to establish that the instigation was the proximate cause for commission of suicide and mere

vague allegation, that too without referring to any date or time or any particular incident, cannot constitute an offence under Section 306 of Indian

Penal Code.

It has been observed in paragraph 15 and 16 thusâ€

“15. that the question now arises as to whether there is any reason for intervention in this matter right at this stage. Till now, on the basis of the

materials placed before the learned Court, cognizance has been taken of the offence under Section 306 of IPC. Nothing more has been done so far.

But when it is found that the materials as disclosed on investigation do not constitute an offence under Section 306 of

 Indian Penal Code or for that matter, any offence in law, whether there can be any justification for allowing the proceeding to continue.

Though the facts and circumstances of the present case are significantly different from those of the cases as referred to earlier, I am of the

opinion that in absence of even prima facie material or even something more than mere shadow of doubt implicating the petitioner with the offence

under Section 306 of IPC, further continuation of the proceeding will amount to abuse of process of Court. I think in the best interest of justice, in

exercise of power under Section 482 of the Criminal Procedure Code, further proceeding should be quashed.â€​

In case of Sister Lily vs. The State of West Bengal & Anr. reported in (2016) 2 C Cr LR (Cal) 546 a decision inG angula Mohan Reddy vs. State of

Andhra Pradesh reported in (2010) 1 SCC (Cri) 917 has been relied on by the Hon’ble Supreme Court to hold that to convict a person under

Section 306 of the IPC there has to be a clear mens rea to commit offence it also requires an active act or direct act which leads deceased to commit

suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide.

Yet, learned counsel for the petitioners placed reliance in case of Sanju alias Sanjay Singh Sengar vs. State of M.P. reported in 2002 SCC (Cri) 1141

wherein it has been observed that 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.

In the present case the Investigating Officer has submitted report, as per the telephonic information received on 18.5.2019 at 10.35 Hrs. S.I. Prasanta

Kumar Biswas Bongaon P.S. had been to the house of Ashim Saha and found that the door of the house of said Ashim Saha was closed from inside

and after breaking open the door in presence of Ashim’s son Arindom Saha, he was found lying in his bed in unconscious condition and

immediately he was shifted to hospital where he was declared brought dead by the Medical Officer. Obviously, it was a case of unnatural death of the

petitioner no. 2 who was one amongst other petitioners seeking to quash the proceeding under reference. So, his case is required to be filed for ever.

It is pointed out by way of supplementary affidavit that the maternal uncle of the victim, namely, Sujit Nath alias Kanchan is a renowned lawyer of the

Bongaon Court who is influencing the proceeding of the Court and he is the scribe of the FIR who has influenced the surety of Abir Saha, petitioner

no. 1 to withdraw his surety on behalf of the said petitioner no. 1 on the score that he was not contacting the surety and was not appearing before the

learned Court.

By order dated August 21, 2018 the learned Court discharged the surety and directed the petitioner no. 1 to arrange the fresh surety by August 24,

2018 but the petitioner could not get any surety due to influence by lawyer Sujit Nath alias Kanchan. An application for transfer of the case to Barasat

Court has been preferred when the learned Court at Bongaon fixed the date for framing of charge on September 14, 2018.

Mr. Mayukh Mukherjee learned counsel for the opposite party no. 2 by pressing in service a certificate of birth of the victim girl pointed out that her

date of birth is on 9th February, 1999 and she expired on 18.5.2019 so she was 16 years old on the date of occurrence and has invited my attention at

pages 7, 8 and 9 of the Case Diary wherein the witnesses namely, Subhasis Ghosh, Sanjib Saha, Ratan Haldar and Joydev Mondal appear to have

developed their statements. If the victim girl was 16 years of age and if the fact of refusal by the petitioner to marry her is on the score of being a

minor girl, such refusal by the petitioner no. 1 to marry her cannot be taken to be an act of coercion, harassment or any amount of provocation to such

a pass that could compel the girl to commit suicide.

The plain reading of the FIR reflects that as because the petitioner no. 1 refused to marry a girl of 16 years and as the parents of the petitioner

refused to give in marriage of the victim with the petitioner no. 1, the victim committed suicide by hanging. From the four corners of the FIR the case

of abetment on the part of the petitioner is not made out which compelled the victim to commit suicide. My attention has been invited to the statements

of the witnesses recorded under Section 161 of the Code of Criminal Procedure by the Investigating Officer during investigation wherefrom it can

safely be said that the victim girl committed suicide as she was rebuked by her parents. As many as five independent witnesses have been examined

but none of them made any aspersions against the petitioners. It is also reflected from the FIR that prior to her committing suicide, the parents of the

petitioner no. 1 were informed but they refused to accept the daughter of de-facto complainant as their daughter-in-law and drove her out of their

house and made some provocating statement which compelled her to commit suicide. It is crystal clear from such contents of FIR that it does not yield

any element of abetment of suicide.

Taking cue from the observations as made in the above cited decisions and taking into consideration the statements of the witnesses twice recorded

by two successive Investigating Officers, there appears a serious doubt in the judicial mind in respect of the prosecution case which does not justify

continuation of the proceeding under reference. It would appear from the statement of the witnesses recorded under Section 161 of Cr.P.C. that

almost all of the prosecution witnesses stated before the I.O. that the victim girl committed suicide because her parents had rebuked her. But

subsequently, some of the prosecution witnesses have changed their version levelling allegations against the petitioner for having compelled the victim

to commit suicide. I am of the view in the facts and circumstance of the case that the ingredients of 'abetment' are totally absent to warrant

prosecution of the petitioners/accused persons for the alleged offence under Section 306/34 I.P.C.

In the context of what has been discussed above and bearing in mind the principles of law as discussed in the foregoing paragraphs, this Court is of

the view that allegations levelled in the FIR and charge sheet including police papers even taken together at their face value and accepted in its

entirety do not make out any offence against the petitioners, the continuation of such proceeding would amount to a sheer abuse of the court and not in

the interest of justice. So to prevent abuse of the process of court, the entire proceeding is liable to be quashed as I do not find materials so as to

justify proceeding any further.

Lending words from the decision in case of Sister Lily (supra), I do share the pain and agony of the parents for having lost school going daughter but

somebody should be punished to heal up such wound, is not a right thought or desirable. Ergo, this Court is inclined to quash the proceeding because

continuation of the proceeding under reference would tantamount to sheer abuse of the process of the Court.

Consequently, the proceeding in connection with Sessions Case No. 35 of 2018 arising out of Bongaon P.S. Case No. 1201 dated November 05, 2015

under Sections 306/34 of the Indian Penal Code now pending before the Court of learned Additional District Judge, 1st Court, Bongaon at North 24-

Parganas is hereby quashed.

In the result, revisional application being CRR 2805 of 2018 is allowed and disposed of.

Urgent certified Photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.