Padi Venkateswarlu, Guntur Dt 3 ... vs State Of Ap., Rep. Pp And Anr.,
2021 Latest Caselaw 882 AP

            *THE HON'BLE SRI JUSTICE A.V.SESHA SAI


              +CRIMINAL PETITION NO.12707 OF 2013

                              %17.02.2021
Between:
# Padi Venkateswarlu,
  S/o Brahmaiah, aged 55 years,
  R/o Balijapalli, Rajupalem Mandal,
  Guntur District & 3 others.
                                            ....Petitioners-Accused.
And
$ The State of A.P.
  Rep.by its Public Prosecutor,
  High Court of A.P.,
  Hyderabad and another.
                                            ....Respondents.

! COUNSEL FOR THE PETITIONERS: Sri Sreekanth Reddy Ambati.

^COUNSEL FOR THE RESPONDENT No.1: Sri S.V.Sainath, Spl.Asst.Public
                                  Prosecutor.
^COUNSEL FOR THE RESPONDENT No.2 : Sri Venkateswarlu Posani.

< Gist:

> Head Note

? Cases referred
 1) 2002 (1) ALD (Crl) 812
 2) (2010) 1 SCC 750
 3) (2010) 8 SCC 628
 4) (2010) 12 SCC 190
 5) (1992) AIR SC 604
 6) (2019) 13 SCC 598
                                     2                          AVSS,J
                                                Crl.P.No.12707 of 2013




          THE HON'BLE SRI JUSTICE A.V.SESHA SAI



1. Whether Reporters of Local newspapers      Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be      Yes/No
   Marked to Law Reporters/Journals.


3. Whether Their ladyship/Lordship wish       Yes/No
   to see the fair copy of the Judgment?




                                           __________________
                                           A.V.SESHA SAI, J
                                     3                                    AVSS,J
                                                          Crl.P.No.12707 of 2013




      THE HONOURABLE SRI JUSTICE A.V.SESHA SAI

             CRIMINAL PETITION No.12707 of 2013
ORDER :

In the present Criminal Petition, filed under

Section 482 Cr.P.C., petitioners, who are the accused in

Cr.No.140 of 2013 of Rajupalem Police Station, Guntur, are

praying for quashment of the First Information Report registered

against them for the alleged offences under Section 306 r/w

34 IPC.

2. Heard both sides and perused the entire material available

on record.

3. Though, initially, the First Information Report came to be

registered under Section 174 Cr.P.C., subsequently, the same

had been altered by incorporating Sections 306 r/w 34 IPC.

4. According to the learned counsel for the petitioners, the

very registration of the crime under the said provisions of law is

a patent abuse of process of law. In elaboration, it is further

contended that there are absolutely no ingredients of the above

Sections of law in the entire complaint, as such, continuation of

proceedings against the petitioners herein is impermissible.

5. In support of his submissions and contentions, learned

counsel for the petitioners places reliance on the following

judgments:

1) 2002 (1) ALD (Crl) 812

2) (2010) 1 SCC 750

3) (2010) 8 SCC 628 4 AVSS,J Crl.P.No.12707 of 2013

4) (2010) 12 SCC 190

5) (1992) AIR SC 604

6. On the contrary, vehemently opposing the present

Criminal Petition, learned Special Assistant Public Prosecutor,

Sri S.Venkata Sainath, contends that, in the absence of any one

of the contingencies of Section 482 Cr.P.C., the present Criminal

Petition deserves no consideration. It is further contended

that, in view of the prima facie allegations contained in the

complaint, petitioners herein cannot invoke the provisions of

Section 482 Cr.P.C. and need to undergo the process of trial

before the learned Magistrate. It is further submitted that the

aspect of mens rea cannot be gone into in the present Criminal

Petition and, eventually, the learned Special Assistant Public

Prosecutor prays this Court to dismiss the Criminal Petition.

7. In the above backdrop, now the issue that emerges for

consideration of this Court is:

"Whether the petitioners herein are entitled for any relief from this Court under Section 482 Cr.P.C.?"

8. The provisions of law, which are germane and relevant for

the purpose of adjudication of the issue, in the present Criminal

Petition, are Sections 107, 108 and 306 IPC. Section 107 IPC,

which deals with the abetment of a thing, stipulates as follows:

Abetment of a thing.--A person abets the doing of a thing, who--

(Firstly)-- Instigates any person to do that thing; or (Secondly)--Engages with one or more other person or persons in any conspiracy for the 5 AVSS,J Crl.P.No.12707 of 2013

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.

Section 108 IPC defines the term 'Abettor', which reads thus:

108. Abettor--A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Section 306 IPC deals with the punishment for abetment of

suicide and the same stipulates as follows:

306. 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.

9. It is very much obvious and evident from a reading of

Section 107 IPC that, undoubtedly, the present case does not

fall under the first and second contingencies of the said

provision of law. In order to decide as to whether the case of the

prosecution falls under the third contingency, it may be

appropriate and apposite to refer to the judgments cited by the

learned counsel for the petitioners.

10. In the case of V.Shankaraiah v. State of A.P. (first

supra), the composite High Court, at paragraph Nos.4 and 5,

held as under:

6 AVSS,J Crl.P.No.12707 of 2013

"4. 'Abetment' in Section 306 IPC has to be understood with reference to its definition given in Section 107 I.P.C. While considering the scope of Section 107 IPC the Supreme Court in C.B.I. K VS. V.C.SHUKLAL, observed, in Para 50 at Page 1423 as follows:

"...a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses.

(i) instigates that person to do that thing.

(ii) engages with one or more other person or persons in any conspiracy for the doing of that things.

(iii) Intentionally aids, by any act or illegal omission, the doing of that thing.

So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the word 'aid' in the third clause it would be advantageous to see Explanation 2 in Section 107 IPC, which reads thus:

"Whoever, either prior to or at the time of the commission of the act, does anything in order to facilitate the commission thereof, is said to aid the doing of that act"

It is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence....."

Clauses (i) and (ii) extracted above do not apply to this case because no 'instigation' by or 'conspiracy' between the petitioner and the other accused is alleged by the prosecution. The third clause also is not attracted because no 'aid' was given by the petitioner to the deceased when she committed suicide. Aiding 7 AVSS,J Crl.P.No.12707 of 2013

suicide by a person can only be by positive acts of assisting in procuring the material required for suicide, like a person supplying rope or other material for hanging, when a person expresses his desires to commit suicide by hanging, or supplying weapon or material like drugs, poison, etc., when the person intending to commit suicide asks such aid, or if a person suggest the modes in which suicide can be committed like jumping into a river, lake or well, etc., to a person who intends to commit suicide.

5. In SIA RAM VS. STATE OF U.P.2, the Supreme Court held that in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. It is clearly held that mere proof that the crime could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of Section 107 IPC. Various High Courts have taken a view that merely because a person committed suicide by feeling insulted or humiliated, due to the comments or utterances made by the accused, the accused cannot be said to be guilty of an offence under Section 306 IPC. In DEVRAJ VS. STATE OF H.P.3, a partner in a firm committed suicide due to the other partners [accused] taking away large sums of money out of partnership fund for various purposes and their not rendering an account to the deceased, and for not permitting the deceased utilizing the profits. The other partners in the firm, who are accused of an offence under Section 306 IPC for the suicide of the deceased, were held to be not guilty of such offence. In ALKA GREWAL VS. STATE OF M.P.4, the woman was held to be not guilty of an offence under Section 306 IPC, for her husband committing suicide, after feeling insulted and humiliated due to her immoral 8 AVSS,J Crl.P.No.12707 of 2013

conduct. The Court specifically held that though she may be the cause for suicide of her husband, she cannot be said to have abetted his suicide. In STATE OF GUJARAT VS.

           PRADYUMAN         RAMANLAL        MEHTA5,         the
           publishers     and    others     responsible      for

publication of a defamatory article are held to be not guilty an offence under Section 306 IPC, for the defamed persons suicide on feeling humiliated due to the defamatory publication. V.ADINARAYANA VS. STATE OF A.P.6, is a case where a woman committed suicide when the accused threatened her that he would reveal her illicit connection to her husband. The accused was held to have not committed an offence under Section 306 of IPC. The Supreme Court in MAHENDRA SINGH VS. STATE OF M.P.7, held that merely because the deceased woman stated in her dying declaration that she was harassed by the accused, the accused cannot be held guilty of an offence under Section 306 IPC".

11. In the case on hand also, it is not the version of the

prosecution that the petitioners herein aided the deceased when

he committed suicide.

12. In the case of Gangula Mohan Reddy v. State of A.P.

(second supra), the Hon'ble Apex Court, at paragraph Nos.12, 13

and 17, ruled as follows:

12. Explanation 2 which has been inserted along with Section 107 reads as under:

"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 facilitate the commission thereof, is said to aid the doing of that act."

9 AVSS,J Crl.P.No.12707 of 2013

13. Learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh & Another v. State of M.P. 1995 Supp. (3) SCC 731. In the case of Mahendra Singh, the allegations levelled are as under:-

"My mother-in-law and husband and sister-in- law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

17. The Court in the instant case came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema may necessarily be drawn".

13. In Madan Mohan Singh v. State of Gujarat & Another

(third supra), the Hon'ble Apex Court, at paragraph Nos.8 and

12, held as under:

"8. We have gone through the suicide note though it is not yet on record. Shri Tulsi pointed out that even if this suicide note is accepted as it is, along with the FIR, no ingredients of Sections 306 and 294 (b), IPC could be spelt out from the same. We have gone through the whole FIR as well as the so-called suicide note which seems to have been signed on 4.2.2008 wherein he had complained about the stale incidents dated 15.10.2007 to 19.10.2007. It seems that it is 17 days after that, that he was found dead 23.2.2008. It is claimed by his wife Harshida Ben that she got a call from the Gujarat High Court informing her that a suicide note was found and that she should search for 10 AVSS,J Crl.P.No.12707 of 2013

such note in her house subsequent to which she claimed to have found the suicide note bearing the signature of the deceased, thus bringing the origin of alleged suicide note under the cloud of suspicion.

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 to bring out the suicide of the concerned person 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 S.S.Chheena v. Vijay Kumar Mahajan and another

(fourth supra), the Hon'ble Apex Court, at paragraph No.25, held

thus:

"25. 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, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide".

15. It is significant to note that, in the present case, the

alleged altercation took place on 25.09.2013 and the deceased 11 AVSS,J Crl.P.No.12707 of 2013

died on 09.10.2013 i.e. after twelve days. On this aspect, the

judgment of the Hon'ble Apex Court in Madan Mohan Singh's

case (referred supra) is squarely applicable to the present case.

The judgment cited by the learned Public Prosecutor, in

Narayan Malhari Thorat v. Vinayak Deorao Bhagat1, would

not render any assistance to the case of the prosecution in view

of the factual and circumstantial situation of the said case.

16. In this context, it may also be appropriate to refer to the

judgment of the Hon'ble Apex Court in State of Haryana and

others v. Ch. Bhajan Lal and others (fifth supra). In the said

judgment, the Hon'ble Apex Court had an occasion to deal

with the power and jurisdiction of the Courts under

Section 482 Cr.P.C., and laid down the following guidelines:

(a) where the allegations made in the First Information Report or the complaint, 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;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

    (2019) 13 SCC 598
                                         12                                           AVSS,J
                                                                      Crl.P.No.12707 of 2013

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only anon-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) 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;

(f) 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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding 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. [305D-H; 306A-E] 8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justi- ï7 on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52; distinguished".

17. In the considered opinion of this Court, the case on hand

squarely falls under the guidelines 'a' and 'e' and, in the absence

of necessary ingredients of Section 306 r/w 107 IPC, the instant

criminal proceedings initiated against the petitioners herein

cannot be permitted to be continued.

13 AVSS,J Crl.P.No.12707 of 2013

18. For the aforesaid reasons, and having regard to the law

laid down by the Hon'ble Apex Court and this Court in the above

referred judgments, Criminal Petition is allowed, quashing

F.I.R.No.140 of 2013 on the file of the Rajupalem Police Station,

Guntur District.

Miscellaneous Petitions pending, if any, in this Criminal

Petition, shall stand closed.

__________________ A.V.SESHA SAI, J 17th February, 2021.

Note:

LR copy to be marked.

B/o Tsy