Instigate means to Goad or Urge Forward or to Provoke, Incite, Urge or Encourage to do an Act

Indian Penal Code, 1860 - Ss. 294, 306, 34 - A person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act.

HIGH COURT OF MADHYA PRADESH BENCH GWALIOR 

SINGLE BENCH: HON. SHRI JUSTICE G.S. AHLUWALIA

26/02/2018

M.Cr.C. No.235/2018 

Applicant: Suresh Gupta Versus Respondents: State of M.P. and another

Shri A.P.S. Sisodiya, Advocate for applicant. Shri RVS Ghuraiya, Public Prosecutor for respondent no.1/State.

ORDER

Per Justice G.S. Ahluwalia, 

This application under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.471/2017 registered at Police Station Mungawali, District Ashoknagar for offence under Sections 294, 306, 34 of IPC. 

2. The necessary facts for the disposal of present application in short are that on 13/10/2017 at about 5:40 PM the deceased [Suresh Gupta Vs. State of M.P. and another] Shivcharan resident of Malhargarh died during treatment, as he had consumed sulphas pills. According to the prosecution case, at 5:00 PM Ramsakhibai W/o Babulal Rai, aged about 75 years, came to the police outpost and informed that Shivcharan was being harassed by Rampravesh, Sunita, Raghvendra and Suresh Gupta (applicant) because of some money dispute and they were trying to grab his house and the shop and today also he was harassed by them, therefore, a short-while ago he has consumed sulphas pills, which were kept in the shop and he is also coming to the police outpost. The said information was written in the Rojnamchasanha and it was also mentioned in the Rojnamchasanha that the deceased Shivcharan was also seen coming to the police outpost. The deceased Shivcharan also reached to the police outpost and an another Rojnamchasanha was written at 17:05 PM to the effect that the deceased Shivcharan came to the police outpost and informed that as he was under oppression and, therefore, he has consumed sulphas pills. As his physical health was deteriorating, therefore, for immediate treatment and recording of dying declaration, the victim was sent to the CHC Hospital alongwith police constables. At the request of the police authorities, the doctor recorded the dying declaration of the deceased, which is as under:- 

[Omitted] 

Thus, it is clear from the dying declaration that the applicant and the accused persons were trying to grab the property of the deceased and there was some monetary dispute between the parties. However, the deceased died in the hospital at 6 PM during treatment. 3. It is submitted by the counsel for the applicant that even if the entire dying declaration is accepted, then it cannot be inferred that the applicant in any manner had abetted the deceased to commit suicide, as the ingredients of Section 107 of IPC are not there. To bolster his submissions, the counsel the applicant has relied upon the judgments of the Supreme Court in the cases of Praveen Pradhan Vs. State of Uttranchal & Anr. reported in (2012) 9 SCC 734, Ramesh Kumar vs. State of Chattisgarh reported in (2001) 9 SCC 618, Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC 371, Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 605, Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in (2010) 1 SCC 750, State of West Bengal Vs. Orilal Jiswal and another reported in (1994) 1 SCC 73, M. Mohan Vs. State represented by Deputy Superintendent of Police reported in (2011) 3 SCC 626, Amalendu Pal alias Jhantu Vs. [Suresh Gupta Vs. State of M.P. and another] State of West Bengal reported in (2010) 1 SCC 707, S.S. Cheena Vs. Vijay Kumar Mahajan & Another reported in (2010) 12 SCC 190 and a judgment of the coordinate Bench of this Court in the case of Arvind Kashiv and others Vs. State of MP passed on 27/1/2015 in Criminal Revision No.105/2014. 

4. Per contra, it is submitted by the counsel for the State that the matter is still at the stage of investigation. The applicant and others were trying to grab the property of the deceased and there was some monetary dispute also between the parties and, therefore, where the accused has created such a situation before the person where he is left with no other option but to put an end to his life, then in the light of the allegations made against the applicant, tentatively it can be inferred that there is a material so as to make out an offence under Section 306 of IPC. It is further submitted that the applicant is still absconding and he has not been arrested so far. By referring to the statement of the witnesses, it is submitted by the counsel for the State that according to the allegations made against the applicant, he alongwith other co-accused persons was trying to grab the property of the deceased and when they could not succeed in their plan, then on the festival of Deepawali the deceased was compelled to gamble and his money was won by the applicant and other co-accused persons and, thereafter, the applicant and other co-accused persons were pressurizing him to return the loan [Suresh Gupta Vs. State of M.P. and another] amount and they were pressurizing him to execute a sale deed in respect of his shop and the house. It is further submitted that if something was outstanding against the deceased, then the applicant and the other co-accused persons had a remedy of filing a civil suit for recovery of money, which they had lent to the deceased during Deepawali festival, but they had no right to pressurize the deceased to sell his property in favour of the applicant and other co-accused persons. Thus, in fact the applicant without following the due procedure of law, was trying to grab the property of the deceased and everyday the deceased was being humiliated and pressurized by the applicant and under these circumstances, the deceased was left with no other option but to put an end to his life and, therefore, at this stage, it cannot be said that the applicant or the other co-accused persons had not abetted the deceased to commit suicide. 

5. Heard learned counsel for the parties. 

5.1 In the present case, specific allegations are that the applicant and other co-accused persons were interested in grabbing the property of the deceased and initially when they could not succeed in their evil plan, then he was forced to gamble during the Deepawali festival, in which he lost money to the applicant and, therefore, the applicant and other co-accused persons were pressurizing him to sell his property in their favour, as a result of which, the deceased was under immense mental [Suresh Gupta Vs. State of M.P. and another] pressure and even on the date of the incident, the deceased was harassed by the applicant and other co-accused persons, as a result of which, he committed suicide by consuming sulphas pills. 

6. The moot question for determination is that : 

"Whether the allegations made against the applicant would prima facie amount to abetement of suicide or not?" 

6.1 Section 107 of IPC reads as under:- 

"Abetment of a thing. 107. 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." 

The Supreme Court in the case of Kishori Lal vs. State of M.P. reported in (2007) 10 SCC 797 has held in para 6 as under:- 

"6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and [Suresh Gupta Vs. State of M.P. and another] distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 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 for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence." 

In the case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in (2010) 1 SCC 707, the Supreme Court has held as under:- 

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their 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, conviction in terms of Section 306 IPC is not sustainable. 

13. In order to bring a case within the purview of [Suresh Gupta Vs. State of M.P. and another] 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. 

14. The expression 'abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause 'thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC. 

15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows: 

"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." 

16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring [Suresh Gupta Vs. State of M.P. and another] the present case within the purview of Section 306 IPC." 

Therefore, it is clear that a person can be said to have instigated another person, when he actively suggests or stimulates him by means of language, direct or indirect. Instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act. 

6.2 The Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 has held as under:- 

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the [Suresh Gupta Vs. State of M.P. and another] offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of [Suresh Gupta Vs. State of M.P. and another] the process of court leading to injustice. 

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. (Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [Suresh Gupta Vs. State of M.P. and another] [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. 8 MCRC.6606/2015 Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]). 

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 

28. x x x x x x x 

29. x x x x x x x 

30. We have already noticed that the legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". This has an inbuilt element of presumption once the ingredients of [Suresh Gupta Vs. State of M.P. and another] an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word "presume" while relying upon Black's Law Dictionary. It was defined to mean "to believe or accept upon probable evidence"; "to take as proved until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross- examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence. 

31 to 34. x x x x x x 

35. The learned counsel appearing for the appellant has relied upon the judgment of this Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 to contend that the offence under Section 306 read with Section 107 IPC is completely made out against the accused. It is not the stage for us to consider or evaluate or marshal the records for the purposes of determining whether the offence under these provisions has been committed or not. It is a tentative view that the Court forms on the basis of record and documents annexed therewith. No doubt that the word "instigate" used in Section 107 IPC has been explained by this Court in Ramesh Kumar v. Stateof Chhattisgarh, (2001) 9 SCC 618 to say that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred. In other words, instigation has to be gathered from the circumstances of the case. All cases may not be of direct evidence in regard to [Suresh Gupta Vs. State of M.P. and another] instigation having a direct nexus to the suicide. There could be cases where the circumstances created by the accused are such that a person feels totally frustrated and finds it difficult to continue existence. The husband of the deceased was a paralysed person. They were in financial crises. They had sold their property. They had great faith in the accused and were heavily relying on him as their property transactions were transacted through the accused itself. Grabbing of the property, as alleged in the suicide note and the statement made by the son of the deceased as well as getting blank papers signed and not giving monies due to them are the circumstances stated to have led to the suicide of the deceased. The Court is not expected to form even a firm opinion at this stage but a tentative view that would evoke the presumption referred to under Section 228 of the Code." 

7. In the present case, the allegations, which have been made against the applicant are that the deceased had lost some money and he was under debt and the applicant and other co-accused persons were pressurizing the deceased to sell his property in lieu of that loan amount. If some amount is outstanding, then the only option available with the person is to file a suit for recovery of money, but he cannot compel the other person to execute a sale deed in lieu of the loan amount. Even if there is a civil transaction between the parties, then it cannot be said that a person cannot be prosecuted for criminal offence, if criminal intent is available. If the facts of the present case are considered, then it cannot be said that the dispute between the parties was predominantly of civil in nature. Had it been a case that the deceased was aggrieved by filing of the civil suit against him by the applicant [Suresh Gupta Vs. State of M.P. and another] and, therefore, he has committed suicide, then by no stretch of imagination it can be said that the applicant in any manner had abetted the deceased to commit suicide by filing a civil suit. However, in absence of any agreement in writing, then compelling a person to execute a sale deed in respect of his property in lieu of the loan amount cannot be said to be a legal remedy available to the applicant. Making an attempt to deprive the deceased from livelihood and shelter without following due procedure of law cannot be appreciated and encouraged. 

8. It is submitted by the counsel for the applicant that where a person is hypersensitive in nature and if he had other options for redressal of his grievance and if he adopts a shortcut method of running away from the difficulties of the life, then it cannot be presumed that the applicant had abetted commission of suicide. The deceased had an alternative remedy of either making complaint to the police authorities or of taking any other legal action available to him and once he had decided not to take recourse to the legal remedies available to him and, therefore, in such a circumstance, it cannot be presumed that the applicant had created such a situation before the deceased where he was left with no other option but to commit suicide. The submission made by the counsel for the applicant cannot be accepted under the facts and circumstances of the case.

9. In the present case, according to the prosecution, the [Suresh Gupta Vs. State of M.P. and another] deceased had lost certain amount in gambling during Deepawali festival and the applicant was demanding his money back and was pressurizing the deceased to execute the sale deed in respect of his property in lieu of the loan amount. The pressure exerted by the applicant on the deceased cannot be said to be a legal remedy. The applicant cannot blow hot and cold by saying that although he did not adopt any legal remedy for recovery of his money, but the deceased should have explored all legal remedies before committing suicide. Mere asking for refund of money given by a person to the deceased may not amount to abetement of suicide, but pressurizing a person to execute a sale deed in respect of his property in lieu of the loan amount would not be a simple case of demand of money given by the accused to the deceased. 

10. Under these circumstances, this Court is of the considered opinion that in the light of the law laid down by the Supreme Court in the case Amit Kapoor (supra), where an attempt is made by the accused to grab the property of the deceased in an illegal manner, then at this stage inference can be drawn that the applicant had abetted the deceased to commit suicide. Accordingly, this Court is of the considered opinion that it is not a case where the FIR lodged against the applicant for offence under Section 294, 306, 34 of IPC can be quashed. 

11. Before parting with this order, this Court feels it appropriate [Suresh Gupta Vs. State of M.P. and another] to mention that the observations have been made by this Court, in the light of limited scope of interference in exercise of power under Section 482 of Cr.P.C. In case if the charge-sheet is filed, then it will be for the trial court to decide the trial strictly on the basis of the evidence, which would ultimately come on record without getting prejudiced by any of the observations made by this Court. 

Accordingly, the FIR in Crime No.471/2017 registered at Police Station Mungawali, District Ashoknagar for offence under Sections 294, 306, 34 of IPC cannot be quashed. 

The application fails and is hereby dismissed.