Law Web: Whether the court can quash prosecution against accused for an offence U/S 306 of IPC if no material is available him in chargesheet regarding that offence?

In the present case, at the outset, we must note that the

Applicant, a Judicial Officer, was never involved in the pending

lis, as the suit property was purchased by his brother

exclusively and only he was party to the litigation. There is no

reason for the deceased to have implicated the Applicant, as he

was not connected with the dispute at all. The material in the

charge-sheet in form of statements implicating the Applicant,

are too far fetched and definitely fall short of any instigation/

incitement and a bare reference to his presence in Miraj in the

month of May, where he is alleged to have threatened the

deceased and asked him to vacate the subject property is not

sufficient to attract instigation/incitement, as the offence is

registered on 24/06/2016. In any case, even it is not the

allegation of the prosecution that the Applicant abetted the

suicide by instigating or inciting the deceased in any manner,

as abetment involves a mental process of instigating a person

or intentionally aiding a person in doing of a thing and without

a positive act on part of the Applicant to instigate or aid in

commission of suicide by the deceased, he cannot be convicted

for an offence punishable under Section 306 of IPC.

In order to attract the offence under Section 306, clear

mens rea to commit the offence has to be established, as it

requires active/direct act, leading the deceased to commit

suicide left with no other option, but in the present case, the

material in the charge-sheet falls short of proving the

ingredients of Section 306 and, hence, in our view, by

exercising the inherent power conferred under Section 482,

the purpose of it being to prevent the abuse of process or to

secure the ends of justice, we deem it appropriate to safeguard

the interest of the Applicant.

In absence of we exercising the power, the Applicant will

have to unnecessarily face the rigmarole of trial, which

ultimately would result in acquittal, as no material in the

charge-sheet collected by the prosecution attract the

ingredients of Section 306 of IPC and we would be failing in

discharge of our duty, if we do not step in and save the

Applicant from undergoing the long drawn process of trial, as

the material in the charge-sheet through close scrutiny, do not

in any manner, establish the ingredients of abetment of suicide

under Section 306 of IPC against him.

For the reasons recorded above, we are satisfied that

human liberty, which is the most cherished constitutional

value, must be protected by us, by exercising the inherent

power conferred under Section 482 of the Criminal Procedure

Code. {Para 20}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.959 OF 2016

WITH

INTERIM APPLICATION NO.2060 OF 2024

Nasirhusen Mohiddin Jamadar Vs The State of Maharashtra & Anr.

CORAM: BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

DATED : 18 th NOVEMBER, 2024

ORDER (PER BHARATI DANGRE, J.) :-

Citation: 2024:BHC-AS:45637-DB.

1. The present Application filed by the Applicant, seek relief

of quashing and setting aside of C.R.No.53 of 2016, registered

with Mahatma Gandhi Chowk Police Station, Miraj on

24/06/2016 against the Applicant, invoking Sections 306 and

34 of the Indian Penal Code (“IPC”), on the ground that on

taking into consideration the nature of the accusations levelled

against him and the law that has evolved around Section 306

of IPC, no case of whatsoever nature is made out against him

and, therefore, continuation of the proceedings against him

would be nothing short of abuse of process of court.

2. We have heard learned senior counsel Mr.Kumbhakoni

alongwith Mr.A.M.Kulkarni and Mr.Manoj Badgujar for the

Applicant.

Despite service of notice, none is present on behalf of

Respondent No.2.

Respondent No.1 is represented by learned Additional

Public Prosecutor Mr.Yagnik.

3. The subject FIR was registered on the complaint filed by

Respondent No.2, son of deceased Bhupal Ramu @

Ramchandra Mali, who left his residence on 20/06/2016 and

was to return on the next day, but on his failure to return

home, a missing complaint was lodged on 21/06/2016. On

22/06/2016, body of Bhupal was found on the boundary of an

agricultural land and on search at his residence, a two page

note and from the spot, three written chits were seized. These

chits/notes were alleged to be suicide notes, which made

reference to the Applicant and his brother Jakirhusain

Mohiddin Jamadar.

4. The genesis of the note/chit lied in Regular Civil Suit

No.384 of 1986 filed between the members of Hirgude family at

Miraj, seeking partition and separate possession of the suit

properties. The suit was decreed vide judgment dated

01/10/1992 and the decree for partition and separate

possession was passed.

Regular Civil Appeal No.632 of 1992 was filed against it

and though the same was dismissed, decree came to be

modified on 8/11/2020 by the Appellate Court.

Final decree proceedings for preparation of final decree,

in terms of the preliminary decree for partition was taken out

by the decree-holders, by preferring Final Decree Application

No.10 of 2004 and the Court Commissioner appointed towards

execution of the decree, suggested partition of the suit

property in terms of the plan.

5. The brother of the Applicant, Jakirhusain purchased the

undivided share allotted to some of the parties to the aforesaid

decree, with the consent of the co-sharers vide registered Sale

Deed dated 07/12/2010. Worth it to note that the Sale Deed is

exclusively in the name of Jakirhusain Mohiddin Jamadar, as

the purchaser and member of Hirgude family as the vendors.

The Applicant, in no way, is connected with the said

transaction.

6. The Executing Court, on 16/07/2015, passed an order

acting upon the report of the Court Commissioner for

division/partition of the property in terms of the partition

decree and on 03/08/2015, the Executing Court, passed an

order, directing issuance of possession warrant in terms of the

report of the Court Commissioner.

Jakirhusain was impleaded as Decree Holder No.4 in the

final decree proceedings and on 08/01/2016, an order was

passed by the Executing Court, by issuing possession warrant

in terms of the decree and the report of the Court

Commissioner in his favour, in the execution proceedings in

the Court of Civil Judge, Junior Division, Miraj. The said order

clearly directed handing over of the possession of the piece of

land mentioned in City Survey No.6267, which was purchased

by Jakirhusain vide registered Sale Deed and the Bailiff was

directed to implement the order, by executing the possession

warrant.

Being aggrieved by the said order, a writ petition was

instituted in this Court (Writ Petition No.12598 of 2015) and

by order dated 04/02/2016, this Court confirmed the order of

the Executing Court, in particular, the order issuing

possession warrant.

In compliance, on 26/04/2016, Jakirhusain was handed

over the actual/physical possession of the property purchased

by him under the registered Sale Deed and allotted to the

share of his vendors, in terms of the execution of partition

decree.

7. As far as the Applicant is concerned, he had no role to

play in the entire episode, but to continue the narration, when

Jakirhusain was handed over the possession of the property,

Bhupal Mali, the father of the Complainant, was harassing the

two brothers, as he staked his claim in the said portion of the

suit property, which was purchased by the brother of the

Applicant, with which he had no concern and the entitlement

of Jakirhusain was established through the series of orders

passed by the competent court, pursuant to which, he came in

possession of the said piece of land.

8. Special Civil Suit No.73 of 2014 was filed by some family

members of the Complainant in which Jakirhusain alone was

impleaded as a respondent and the Applicant was never a

party to the said proceedings. The plaint in the suit came to be

rejected on 01/12/2014.

However, the deceased carried a grudge against the

family of Jakirhusain and despite recognition of his rights

through legally adopted proceedings, he was not ready to

accept the verdict.

9. The Applicant, being a law graduate, was engaged in

private practice and he shifted to Miraj from Sangli. The

Applicant had performed inter-religion marriage against the

wishes of his family members and in fact, it is the specific

assertion of the Applicant that the relationship with his family

members alongwith his brother, Jakirhusain, was severed to

such an extent that they were not even on talking terms. In

the year 2004, the Applicant got selected in the judicial

service and, thereafter, was posted at distinct places and at the

time when the subject C.R. is registered, he was serving as

Judge, Small Causes Court at Nagpur.

The Applicant had purchased his own house in the year

2011-12 at Sangli, with an intention that he shall be able to

reside independent of his family in the same area, where he

had his roots.

10. According to the learned senior counsel Mr.Kumbhakoni,

the Applicant had no concern with the deceased, Bhupal Mali

or the Complainant, as only during his vacations and that too

for a brief span, he used to visit Miraj, but he is implicated with

malafide intention and ulterior motive, despite the fact that he

has no connect with the property that was subject matter of

the litigation or with the persons involved in the Civil Suits,

which is the genesis of event, giving rise to the complaint in

issue.

The suicide note also only make reference to

Jakirhusain Mohiddin Jamadar, where the deceased had

written that he was responsible for finishing him and his

sacrifice will not go waste and even he will finish him. Near the

place where the body of Bhupal was found, it was surrounded

by bottles containing poisonous medicine and three chits were

found lying. The Complainant, therefore, alleged that

Jakirhusain and his brother Nasirhusen are responsible for his

death and being fed up with the harassment caused to his

father, he had committed suicide.

11. When the Applicant approached this Court, by filing the

present Application, on the first date of hearing i.e. on

12/08/2016, by way of ad-interim relief, this Court directed

that though the investigation in the subject C.R. shall continue,

no coercive action shall be taken against the Applicant and

this order continue to operate till date.

On completion of investigation, the charge-sheet has been

filed and by amending the Application, the same is placed on

record.

When the material in the charge-sheet is carefully

perused, it is the case of the Complainant that the possession

of two and half gunthas of land from City Survey No.6267 was

taken by Jamadar Vakil, without their permission.

According to the Complainant, after taking possession,

Jakirhusain had arranged Kanduri in the cowshed and after

feeding people, pieces of mutton and bones were thrown there,

which had caused mental harassment to his entire family and

from that time, his father was annoyed. As per the

Complainant, some time in past, his father was also assaulted

by Jamadar Vakil and he is alleged to have threatened him by

saying, “in my house, there are four lawyers and two Judges

and, therefore, he can do anything, anytime, anywhere”.

A statement of Jayendra Balasaheb Patil, which forms

part of the charge-sheet, is with reference to Bhupal Ramu

Mali, who was providing necessary instructions for the court

cases to be conducted and according to him, the mother-in-law

of Bhupal Mali as well his wife and other relatives were

required to attend the court proceedings and whenever they

used to cross-path, Jakirhusain used to threaten by saying

that in his house, there are four lawyers and two Judges and

he will see to it that they do not even get service of lawyer and

this was told by Bhupal Mali to Jayendra Patil. In his

statement, it is also stated that Nasirhusen had visited the

house in the month of May and he had also threatened Bhupal

to vacate the place and remove the cowshed and from this

time, Bhupal was under tremendous pressure and was unable

to focus on anything.

The statement of Jayendra Patil is recorded under

Section 164 of the Criminal Procedure Code, where he referred

to his last conversation with the deceased and has narrated

that he was frustrated on account of his failure in the legal

proceedings as well as the threats given by Jakirhusain

Jamadar.

Jayendra Patil do not even refer to the present Applicant

in his 164 statement, recorded by Magistrate.

12. The material in the charge-sheet placed before us, will

have to be appreciated in the light of the provision, which

punishes abetment of suicide under Section 306 of IPC.

Section 306 read with Section 107 of IPC, has been

subject matter of interpretation of various decisions and it is

well settled, that to attract the offence of abetment of suicide ,

proof of direct or indirect acts of instigation or incitement of

suicide by the accused and that too proximate to the time of

occurrence must be necessarily established. The cardinal

principle is identified to be mens rea to abet the suicide and

despite a suicide note, prima facie, revealing harassment,

unless the proof of instigation to commit suicide is offered, it is

held that a person cannot held guilty of having abated suicide

within the meaning of Section 306.

It is equally well settled that the charge under Section

306 of IPC is not sustainable on the allegation of harassment,

without there being any positive act, proximate to the time of

occurrence of the incident on part of the accused, which led or

compelled the person to commit suicide.

13. The three segments of Section 107 of IPC, which

prescribe as to what would amount to ‘abetment’ defines

abetment as instigation of a person to do a particular thing. Its

second limb define it with reference to engaging in a

conspiracy, with one or more other persons, whereas under

the third segment, abetment is founded on intentionally aiding

the doing of thing, either by act or commission.

To convict a person under Section 306 of IPC, it

necessarily require a proof of direct or indirect acts of

incitement to the commission of suicide and it is a well

received interpretation that abetment involves a mental

process of instigating a person or intentionally aiding a person

in doing of a thing.

In Madan Mohan Singh Vs. State of Gujarat

, a case

which arise in the context of a petition under Section 482 of

CrPC, where the High Court dismissed the Petition for

quashing an FIR registered for offences under Sections 306

and 249(b) of IPC, where the FIR was registered on the

complaint of the spouse of the deceased, who was working as a

driver with the accused. The driver had been rebuked by the

employer and later was found dead, as he had committed

suicide. A suicide note was relied upon in the FIR, where the

driver had alleged that he had not been given a fixed vehicle

like the other drivers and in addition, there was deduction of

15 days wages from his salary. The suicide note named the

appellant/accused and in this background, the Apex Court

observed thus :-

“10. We are convinced that there is absolutely nothing in this

suicide note or the FIR which would even distantly be viewed as an

offence muchless under Section 306 IPC. We could not find

anything in the FIR or in the so-called suicide note which could be

suggested as abetment to commit suicide. In such matters there

must be an allegation that the accused had instrigated the deceased

to commit suicide or secondly, had engaged with some other person

1 (2010) 8 SCC 628

in a conspiracy and lastly, that the accused had in any way aided

any act or illegal omission to bring about the suicide.

11. In spite of our best efforts and microscopic examination of the

suicide note and the FIR, all that we find is that the suicide note is a

rhetoric document in the nature of a departmental complaint. It

also suggests some mental imbalance on the part of the deceased

which he himself describes as depression In the so-called suicide

note, it cannot be said that the accused ever intended that the

driver under him should commit suicide or should end his life and

did anything in that behalf. Even if it is accepted that the accused

changed the duty of the driver or that the accused asked him not to

take the keys of the car and to keep the keys of the car in the office

itself, it does not mean that the accused intended or knew that the

driver should commit suicide because of this.

12. In order to bring out an offence under Section 306 IPC specific

abetment as contemplated by Section 107 IPC On the part of the

accused with an intention tobring about the suicide of the person

concerned as a result of that abetment is required. The intention of

the accused to aid or to instigate or to abet the deceased to commit

suicide is a must for this particular offence under Section 306 IPC.

We are of the clear opinion that there is no question of there being

any material for offence under Section 306 IPC either in the FIR or

in the so-called suicide note.”

14. In M.Arjunan Vs. State

, the Apex Court elucidated the

essential ingredients of Section 306 in the following words :-

“7. The essential ingredients of the offence under Section 306 IPC

are; (i) the abetment; (ii) the intention of the accused to aid or

instigate or abet the deceased to commit suicide. The act of the

accused, however, insulting the deceased by using abusive language

will not, by itself, constitute the abetment of suicide. There should

be evidence capable of suggesting that the accused intended by such

act to instigate the deceased to commit suicide. Unless the

ingredients of instigation/ abetment to commit suicide are satisfied

the accused cannot be convicted under Section 306 IPC.”

15. In Ude Singh Vs. State of Haryana

, the relevant factors

to be taken into consideration, whether a case would fall

within the ambit of Section 306, were expressed in the

following words :-

2 (2019) 3 SCC 315

3 (2019) 17 SCC 301

“16. In cases of alleged abetment of suicide, there must be a

proof of direct or indirect act(s) of incitement to the commission of

suicide. It could hardly be disputed that the question of cause of a

suicide, particularly in the context of an offence of abetment of

suicide, remains a vexed one, involving multifaceted and complex

attributes of human behaviour and responses/reactions. In the

case of accusation for abetment of suicide, the court would be

looking for cogent and convincing proof of the act(s) of incitement

to the commission of suicide. In the case of suicide, mere allegation

of harassment of the deceased by another person would not suffice

unless there be such action on the part of the accused which

compels the person to commit suicide; and such an offending action

ought to be proximate to the time of occurrence. Whether a person

has abetted in the commission of suicide by another or not, could

only be gathered from the fact and circumstances of each case.

16.1 For the purpose of finding out if a person has abetted

commission of suicide by another, the consideration would be if the

accused is guilty of the act of instigation of the act of suicide. As

explained and reiterated by this Court in the decisions

abovereferred, instigation means to goad, urge forward, provoke,

incite or encourage to do an act. If the persons who committed

suicide had been hypersensitive and the action of accused is

otherwise not ordinarily expected to induce a similarly

circumstanced person to commit suicide, it may not be safe to hold

the accused guilty of abetment of suicide. But, on the other hand, if

the accused by his acts and by his continuous course of conduct

creates a situation which leads the deceased perceiving no other

option except to commit suicide, the case may fall within the fourcorners of Section 306 IPC. If the accused plays an active role in

tarnishing the self-esteem and self-respect of the victim, which

eventually draws the victim to commit suicide, the accused may be

held guilty of abetment of suicide. The question of mens rea on the

part of the accused in such cases would be examined with reference

to the actual acts and deeds of the accused and if the acts and deeds

are only of such nature where the accused intended nothing more

than harassment or snap show of anger, a particular case may fall

short of the offence of abetment of suicide. However, if the accused

kept on irritating or annoying the deceased by words or deeds until

the deceased reacted or was provoked, a particular case may be

that of abetment of suicide. Such being the matter of delicate

analysis of human behaviour, each case is required to be examined

on its own facts, while taking note of all the surrounding factors

having bearing on the actions and psyche of the accused and the

deceased”

16. In Arnab Manoranjan Goswami Vs. State of Maharashtra

& Ors.

, by taking review of the entire law revolving around

Section 306 of IPC, in the backdrop of the fact where the FIR

4 (2021) 2 SC 427

recited that the spouse of the informant had a company,

carrying on the business of architecture, interior design and

engineering consultancy and according to the informant, her

husband was under pressure, as he did not receive money for

the work carried out by him. The FIR recited that the

deceased was called at the office of the appellant and spoken to

his Accountant for payment of money. The deceased left

behind the suicide note stating that his money is stuck and he

named the persons, the owners of the respective companies,

who are not paying his legitimate dues.

17. Recording a prima facie case, on the application of the

test, which has been laid down by the Court in a consistent line

of authorities of which note was taken, it was concluded that it

cannot be said that the appellant was guilty of having abated

the suicide, within the meaning of Section 306 of IPC. The

Apex Court specifically observed thus :-

“62. ….Prima facie, on the application of the test which has

been laid down by this Court in a consistent line of authority which

has been noted above, it cannot be said that the appellant was guilty

of having abetted the suicide within the meaning of Section 306 IPC.

These observations, we must note, are prima facie at this stage

since the High Court is still to take up the petition for quashing.

Clearly however, the High Court in failing to notice the contents of

the FIR and to make a prima facie evaluation abdicated its role,

functions and jurisdiction when seized of a petition under Section

482 CrPC. The High Court recited the legal position that the

jurisdiction to quash under Section 482 has to be exercised

sparingly. These words, however, are not meaningless incantations,

but have to be assessed with reference to the contents of the

particular FIR before the High Court. If the High Court were to

carry out a prima facie evaluation, it would have been impossible

for it not to notice the disconnect between the FIR and the

provisions of Section 306 IP. The failure of the High Court to do so

has led it to adopting a position where it left the appellant to pursue

his remedies for regular bail under Section 439. The High Court

was clearly in error in failing to perform a duty which is entrusted

to it while evaluating a petition under Section 482 albeit at the

interim stage.

63. The petition before the High Court was instituted under Article

226 of the Constitution and Section 482 CrPC. While dealing with

the petition under Section 482 for quashing the FIR, the High Court

has not considered whether prima facie the ingredients of the

offence have been made out in the FIR. If the High Court were to

have carried out this exercise, it would (as we have held in this

judgment) have been apparent that the ingredients of the offence

have not prima facie been established. As a consequence of its

failure to perform its function under Section 482, the High Court

has disabled itself from exercising its jurisdiction under Article 226

to consider the appellant’s application for bail. In considering such

an application under Article 226, the High Court must be

circumspect in exercising its powers on the basis of the facts of each

case. However, the High Court should not foreclose itself from the

exercise of the power when a citizen has been arbitrarily deprived

of their personal liberty in an excess of State power.”

18. In a comparatively recent decision delivered on

03/10/2024 by the Hon’ble Apex Court in the case of Nipun

Aneja & Ors. Vs. State of Uttar Pradesh

, once again the legal

position revolving around Section 306 of IPC was reiterated in

the backdrop of the fact that the deceased, who was an

employee of Hindustan Lever Limited and serving in the

company for past 23 years, committed suicide in his hotel

room in Lucknow. His brother lodged a first information

report and attributed that for last one year, his brother was

tensed because of wrong behaviour of some of his officers and

he was informed by his brother that the Company was offering

VRS scheme and he was being compelled to accept the same.

The complainant, therefore, alleged that the officers of

the Company were responsible for instigating his brother to

take such a weak step, as he was being pressurised to accept

the VRS scheme, which was being made applicable as CRS

(Compulsory Retirement Scheme). Upon the charge-sheet

5 2024 INSC 767

being filed, culminating into the criminal proceedings and

when the High Court declined to quash the proceedings, the

Apex Court noted thus :-

“12. Prima facie, it appears that two things weighed with the

High Court. First, the two police statements of the colleagues of the

deceased referred to above & secondly, the act on the part of the

appellants in handing over the letter to all the salesman present in

the meeting including the deceased containing instructions therein

to do the work of mechandising. This according to the High Court

amounted to demotion.”

Gainfully reproducing the observations made in Geo Varghese

Vs. State of Rajasthan & Anr.

, as well as the observations in

M.Arjunan (supra), it was concluded that for the purpose of

finding out if a person has abetted commission of suicide by

another; the consideration wold be if the accused is guilty of

the act of instigation of the act of suicide. The observations of

Their Lordships in paragraph 21 deserve a reproduction :-

“21. The ingredients to constitute an offence under Section

306 of the IPC (abetment of suicide) would stand fulfilled if the

suicide is committed by the deceased due to direct and alarming

encouragement/incitement by the accused leaving no option but to

commit suicide. Further, as the extreme action of committing

suicide is also on account of great disturbance to the psychological

imbalance of the deceased such incitement can be divided into two

broad categories. First, where the deceased is having sentimental

ties or physical relations with the accused and the second category

would be where the deceased is having relations with the accused in

his or her official capacity. In the case of former category

sometimes a normal quarrel or the hot exchange of words may

result into immediate psychological imbalance, consequently

creating a situation of depression, loss of charm in life and if the

person is unable to control sentiments of expectations, it may give

temptations to the person to commit suicide, e.g., when there is

relation of husband and wife, mother and son, brother and sister,

sister and sister and other relations of such type, where

sentimental tie is by blood or due to physical relations. In the case

of second category the tie is on account of official relations, where

the expectations would be to discharge the obligations as provided

for such duty in law and to receive the considerations as provided in

law. In normal circumstances, relationships by sentimental tie

6 (2021) 19 SCC 144

cannot be equated with the official relationship. The reason being

different nature of conduct to maintain that relationship. The

former category leaves more expectations, whereas in the latter

category, by and large, the expectations and obligations are

prescribed by law, rules, policies and regulations.”

19. The term ‘instigation’, in Section 107 is assigned a

definite meaning to goad, urge forward, provoke, incite or

encourage to do an act. If a person who has committed suicide

is hypersensitive and the action of accused is otherwise not

ordinarily expected to induce a similarly circumstanced

person to commit suicide, it is not safe to hold him guilty of

abetment of suicide. It is only when an accused plays an active

role in tarnishing the self-esteem and self-respect of the

victim, which eventually draws him to commit suicide, he may

be guilty of abetment of suicide because of presence of

instigation and mens rea. Since two persons may possess

different mental capacity to deal with a situation, the

yardstick to be applied shall vary as human behaviour is a

complex phenomenon and what may apply to one may not

apply to the other.

20. In the present case, at the outset, we must note that the