Calcutta High Court (Appellete Side)

I.T (P.A) Supriya Mukherjee vs State Of West Bengal & Anr on 24 February, 2023

24.02.2023

Court No.35 Item No.56 CRR 4055 of 2016

I.T (p.a) Supriya Mukherjee Vs.

State of West Bengal & Anr.

Mr. Swarup Banerjee, Mr. Sajal Kumar Ghosh.

...... for the Petitioner

Mr. Swapan Banerjee, Ms. Purnima Ghosh.

..... for the State

In this case, the petitioner has assailed the order of the District

and Sessions Judge, 1st Court at Serampore, Hooghly dated

September 1, 2016 in Sessions Case No. 03 of 2016.

A case was registered against the present petitioner under

Section 306 IPC, being Uttarpara Police Station Case No. 273 dated

10.10.2011. In connection with the same police conducted

investigate and charge sheet was filed against the present petitioner

under Section 306 IPC. Before the Addition Sessions Court as

mentioned above, the petitioner prayed for her discharge in the case.

The same was rejected by the Court by dint of the order, impugned in

this revision.

The crux of the allegations as mentioned in the FIR dated

October 10, 2011, may be stated as follows:

The defecto complainant has alleged about unnatural death of

his brother by committing suicide, allegedly due to the abetment of

the same by the present petitioner. The victim died on October 6,

2011. The defecto complainant has stated that for the purpose of

avokation the victim stayed separately from the defecto complainant

and his family and on the said fateful date, the defecto complainant

came to know about the victim to have committed suicide. He

immediately rushed to the spot to find the dead body of his brother

who have committed suicide. He says that his dialogue with the

neighbors of his dead brother revealed that the present petitioner

maintained an elicit relationship with the said deceased for the

purpose of some unlawful gain of herself. The present petitioner had

visiting term with the victim and very often used to visit his house.

The defecto complainant also alleges that the victim once offered the

present petitioner for marrying him. According to the complainant,

petitioner's ruthless rejection of the same and her instigations has

caused the victim to commit suicide.

State appears and raises objection as to the contention and the

prayer of the petitioner, on the basis of the materials available in

case diary.

No one is appearing for the private opposite party in spite of

due service of notice. Hence, this matter is taken up for hearing and

disposal in absence of the private opposite party.

There are two specific points involved in this revision to be

determined, firstly as to whether there is any scope for this Court to

invoke provisions under Section 482 Cr.P.C, 1973, to prevent any

abuse of the process of the Court or to secure the ends of justice in

anyway and secondly whether the defecto complainant has be able to

put forth sufficient prima facie material in order to show the

ingredients of a cognizable offence to have been made out against the

present petitioner, so that prosecution against her and her trial

would be legal and just.

The petitioner has referred to a judgment reported in 2011 AIR

(SC) 1238 (M. Mohan vs. The State represented by the Deputy

Superintendent of Police). The Hon'ble Court by referring to the other

two decisions of the said Court has held as to the appropriate stage

and materials, when and upon which Court may exercise its extra

ordinary power under Section 482 Cr.P.C, 1973, in a case. The

following portion may be quoted:-

"68. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another, observed thus:-

"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

69. In Devendra and Others v. State of Uttar Pradesh and Another, this court observed as under:-

"There is no dispute with regard to the aforementioned propositions of law. However, it is now well settled that the High

Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."

Law is now well settled that upon finding no prima facie

material constituting any cognizable offence against the petitioner,

this Court is to espouse jurisdiction under the aforestated provision

of law to interfere with the prosecution initiated against the

petitioner, to prevent any abuse of the process of the Court.

Keeping this broad proposition in mind, it is to be seen in this

case, as to whether the defecto complainant has been able to put

forth any such strong prima facie material against the petitioner or

not.

To discuss on this point we may profitably note the findings of

the Hon'ble Supreme Court in the following three judgments, as

referred to by the petitioner, i.e, (i) (2010) 12 SCC 190 (S.S. Chheena

vs. Vijay Kumar Mahajan & Anr.), the Hon'ble Court held that

"abetment involves a mental process of instigating a person or

intentionally aiding a person in doing of a thing, that without a

positive act on part of accused to instigate or aid in committing

suicide, conviction cannot be sustained. And also that no conviction

can be legally sustained without any credible evidence or material on

record against appellant." The Court hold the order of framing

charge under Section 306 IPC against appellant in that case to be

palpably erroneous and unsustainable and allowed the Appeal.

(ii) (2017) 1 SCC 433 (Gurcharan Singh vs. State of Punjab), the

Hon'ble Court held that :-

"22. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.

Section 107 IPC defines "abetment" and is extracted hereunder:

"107. 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 doing.

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."

23. Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein, the explanations adequately encompass all conceivable facets of the culpable conduct of the offender relatable thereto."

(iii) (2020) 15 SCC 359 (Rajesh vs. State of Haryana), the Hon'ble

Court held that :-

"9. The term "instigation" under Section 107 IPC has been explained in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367) as follows: "16. Speaking for the three-Judge Bench in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an"instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the 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 Edn.)."

10. Words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (See Praveen Pradhan v. State of Uttaranchal, (2012) 9 SCC 734)"

Thus, the law has been very categorically enumerated as to

what would constitute to be the prima facie material as regards

offence under Section 306 IPC.

In this case, upon careful consideration of the FIR and other

materials, any such element of 'instigation' , 'goading', or 'urging

forward', or that of provocation, incitement, encouragement of an act

on part of the petitioner to push the victim forward to commit suicide

are not available, even prima facie. No doubt during investigation the

witnesses have stated about relationship of the present petitioner

with the victim. This fact has also been narrated by defecto

complainant in the FIR. However, excepting the same, there is no

further material available against her to show that she has with a