Vinay Garg and Another vs State of Punjab and Another

Sabina, J.—Petitioners have filed this petition u/s 482 of the Code of Criminal Procedure, 1973 for quashing of the FIR No. 219 dated 8.11.2011, u/s 306, 34 of the Indian Penal Code (''IPC for short), registered at Police Station Sunam (Annexure P-1) and the order dated 21.3.2012 (Annexure P-6). Learned counsel for the petitioners has submitted that a perusal of the FIR itself reveals that no offence can be said to have been committed by the petitioners. After thorough investigation of the case, cancellation report was submitted by the police. The Magistrate had ordered the summoning of the petitioners without assigning any reason. There was money dispute between the parties and petitioners could not be said to be guilty of abetting the suicide committed by the deceased on account of demand for return of their amount in question. In support of his arguments, learned counsel for the petitioners has placed reliance on Ram Sarup versus Ravi and others, 2012 (1) Law Herald 345'', M. Mohan Vs. The State represented by The Deputy Superintendent of Police, and Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), ''.

Learned State counsel as well as counsel for respondent No. 2, on the other hand, have opposed the petition.

Learned counsel for respondent No. 2 has further submitted that the deceased was being harassed by the petitioners and was threatened with dire consequences. Due to this reason Sunil Garg alias Kala committed suicide.

In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, the Apex Court has held as under:-

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers u/s 482, Cr.P.C. Can be exercised by the High Court 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 chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

(1) Where the allegations made in the first information report or the complainant/respondent No. 2, 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 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 no disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR 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 Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR 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 proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

In the light of the above decision, let us examine the facts of the present case as to whether the petitioners can be said to be liable for abetting the suicide committed by Sunil Garg alias Kala.

Prosecution story, in brief, is that complainant and his son Sunil Garg alias Kala were running the business of submersible motors plastic pumps under the name and style of M/s. Anil Kumar and Brothers, Sunam. Rameshwar Dass, father of the complainant, and his brother Puneet Garg were running commission agent shop in the name and style of M/s. Rameshwar Dass and Sons, Sunam. They had been purchasing plastic pipes from M/s. Radhey Polymer Industry for the last 2-2 1/2 years. On 2.11.2011, complainant and his brother Sunil Garg were present in their shop. At about 5.00 P.M., two persons aged about 30-32 years came to their shop and told them that they had come from M/s. Radhey Polymer Industry to settle the accounts. Complainant and his brother finalized the accounts. As per their account, an amount of Rs. 23,806/- was to be paid to M/s. Radhey Polymer Industry whereas the other side claimed that Rs. 3,52,000/- were to be paid. Complainant and his brother sought 4-5 days time to clear the accounts. The persons who had come to the shop of the complainant then left in their car. On 4.11.2011, Sunil Garg told the complainant that the persons who had visited their shop were enquiring from him as to whether they had finalized the accounts. The said persons abused him and had threatened him that in case accounts were not finalized on Monday and a sum of Rs. 3,52,000/- was not paid to them, then they would kill him. Sunil Garg appeared to be very disturbed at that time. On 6.11.2011, Sunil Garg was so scared and stayed at home. On 7.11.2011, Sunil Garg again informed the complainant that he would not go to the shop because he would be killed by the persons of Dhuri Pipe Factory. At about 4.00 P.M., complainant received a phone call from his sister-in-law Nitasha Garg telling him that Sunil Garg had consumed some poisonous substance and was vomiting. Complainant immediately reached home. Sunil Garg told the complainant that he had consumed sulphas on account of fear from the persons belonging to Radhey Polymer Industry, Dhuri. Sunil Garg was taken to the hospital for treatment. However, Sunil Garg died on account of consumption of poison.

Thus, in the present case, parties had some money dispute. Petitioners had to receive money from the complainant party on account of their business dealings. The demand of outstanding amount by the petitioners from the complainant or his brother cannot be termed as an abetment of suicide.

Section 306 IPC reads as under:-

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.

Section 107 IPC reads as under:-

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.

Explanation 1--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Thus, a person has to instigate the other to commit suicide to constitute an offence of abetment of suicide. While dealing with this aspect, the Apex Court in Chitresh Kumar Chopra''s case (supra) has held as under:-

Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage 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 Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar''s case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

Thus, to constitute an offence of abetment to suicide, mens rea is the necessary ingredient. In the present case, the petitioners were demanding money from the complainant and his brother. Such demand of money cannot be said to be instigation by the petitioners to force the deceased to commit suicide. 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, the offence u/s 306 IPC cannot be said to be made out. A person can be said to have committed the offence u/s 306 IPC where there is clear mens rea to commit the offence. It also requires an active act or direct act which leads the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a decision that he commits suicide.

In the instant case, a perusal of the FIR itself does not lead to the inference that deceased had been instigated by the petitioners to commit suicide. Rather as per the FIR, petitioners through the persons, who had allegedly visited the shop of the complainant, were demanding their due amount. Sunil Garg consumed poison to escape the payment of the due amount. The matter was duly investigated by the police and a cancellation report was prepared. During investigation it transpired that apart from the petitioners, Sunil Garg already owed money to a number of persons and due to this reason, he had got mentally upset and had committed suicide. The Magistrate fell in error in not accepting the cancellation report and by summoning the petitioners to face the trail. In these circumstances, criminal proceedings against the petitioners would be nothing but an abuse of process of law. Accordingly, this petition is allowed. The impugned order dated 21.3.2012 (Annexure P-6) passed by the Magistrate summoning the petitioners to face the trial is quashed. Consequently, the cancellation report submitted by the prosecution agency, is accepted.