Shailendra Singh Parihar vs The State Of Madhya Pradesh
2021 Latest Caselaw 8935 MP

M.Cr.C. No.42092/2020                                              1
          HIGH COURT OF MADHYA PRADESH
                 BENCH AT INDORE

      (SINGLE BENCH: HON. MR. JUSTICE RAJENDRA
                  KUMAR (VERMA))
                    M.Cr.C. No. 42092/2020
                Shailendra Singh Parihar & Others
                               vs.
                  The State of Madhya Pradesh


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           Shri A.V. Khare, learned counsel for the petitioners.
           Shri Hemant Sharma, learned Public Prosecutor for the
respondent/State.
           Shri Rajat Raghuvanshi, learned counsel for the
respondent No.2.

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                               ORDER

Passed on the 17th day of December, 2021

This petition filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), has been filed by the applicants being aggrieved by the order dated 08/10/2020, whereby the application under Section 320(2) of Cr.P.C was dismissed, so also praying for quashment of First Information Report bearing crime No.135/2019, registered at police station - Kanadiya, District - Indore, for offence punishable under Sections 306, 34 of IPC, 1860 and the consequential proceedings in Sessions Trial No.777/2019, pending before the Court of Thirteenth Additional Sessions Judge, District Indore.

02. The facts of the case in brief are that on 28/01/2019,

late Dharmendra Singh Rathore, the brother of the complainant/respondent No.2 and husband & father of applicant nos.2 and 3 respectively, committed suicide. Petitioner No.1 is fiance of petitioner no.3. Death intimation was given to the Police on the very same day, however after one and half month, FIR bearing crime no.135/2019 was registered against the applicant at Police Station Kanadiya for the offence under Section 306, 34 of IPC, 1860. On completion of investigation, challan has been filed on 02/08/2019 and charges were framed against the applicants under Section 306/34 of IPC, 1860.

03. During the pendency of the trial, both the parties who are close relatives entered into an amicable settlement and agreed to end the criminal proceedings arising out of family inter-se dispute. An application u/S. 320(2) of 'The Code', duly signed and verified by the petitioners and complainant/respondent no.2, jointly was filed before the trial Court for compromise, however, the learned Court rejected the application on the ground that Section 306 is not a compoundable offence, hence being aggrieved by the impugned order the applicants have filed the present application.

03. Learned counsel for the applicants submitted that in the light of the amicable settlement arrived at between the parties and duly acted upon, nothing remains in the matter and the continuance of the prosecution arising out of the family dispute which has already been settled, would be nothing but a futile exercise. Relying upon the decisions rendered by learned Apex Court in the case of B.S. Joshi vs. State of Haryana reported in 2003(4) SCC 675; Gian Singh vs. State of Punjab & Anr., reported in (2012)10 SCC 303; Nikhil Merchant vs. Central Bureau of Investigation & Anr., reported in 2008(9) SCC 677,

learned counsel submitted that the offences which are not henious in nature and in particular which are arising out of family dispute or of private nature, once settled between the parties by arriving at a mutual agreement should be quashed irrespective of it being non-compoundable in the schedule attached under Section 320 of Cr.P.C.

04. It is also submitted that in the present case, the offence in question being a by-produce of the conflict between the parties belonging to same family and living together under the same roof and such conflict is of personal in nature involving no facet of public wrong at a large or affecting societal conscience is liable to be put to an end on the basis of settlement reached between the parties. Counsel further submitted that continuance of the criminal case in question would be against the policy of law which encourages the settlement of family dispute. Its continuation will not only subject the applicants to unreasonable hardship resulting from mental agony but also causes huge loss of precious Court time. Therefore, counsel prayed for quashment of the First Information Report bearing crime No.135/2019, registered at police station - Kanadiya, District - Indore, for offence punishable under Sections 306, 34 of IPC, 1860 and the consequential proceedings in Sessions Trial No.777/2011, pending before the Court of Thirteenth Additional Sessions Judge, District Indore.

05. Per contra, it is submitted by the learned Public Prosecutor that prima-facie charge for offence under Section 306/34 of the IPC is made out against the applicants on the basis of material available in the charge-sheet, therefore, it cannot be said that learned trial Court has committed any legal or factual error in framing the charge for offence under Section 306/34 of the IPC.

06. Heard the learned counsel for the parties and perused the record.

07. To constitute abetment within the meaning of Section 107 read with Section 306 of the IPC, it must be demonstrated that the accused had instigated, provoked, incited, suggested or goaded the deceased to commit suicide and that, such result was intended by the accused. In a number of decisions, the apex Court has considered whether assault or harassment simplicitor can amount to abetment within the meaning of Section 107 read with Section 306 of the IPC. The Apex Court has considered whether assault or harassment simplicitor amount within the meaning of Section 107 read with section 306 of IPC. The Apex court has answered the issue issue in negative stating that harassment or assault can not amount to abetment.

08. In the case in hand there are audio recordings of telephonic conversation between the deceased and the accused persons which have been seized by the prosecution. There is also a suicide note on the whatsap of the deceased.

9. Learned counsel for the petitioners placed reliance on Ramesh Kumar vs. Stae of Chhatisgarh, (2001) 9 SCC 618, a three judge bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under:

"20 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger of emotion without intending the consequences to actually follow can not be said to be instigation."

10. Learned counsel for the petitioners further placed reliance on the judgment of Hon'ble the apex Court, referring the earlier decision in the case of Mahendra Singh & Anr. vs. State of M.P., (1995) Sup. 3 SCC 731, Ramesh Kumar (Supra) and Gangula Mohan Reddy vs. State of Andhra Pradesh, 2010 (supp) Cr.L.R. (SC) 261, has observed as under:

"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."

11. The power under Section 482, Cr.P.C. is extraordinary in nature and has to be used sparingly. It is not to be exercised routinely, but for limited purposes to give effect to any order under the Code, to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, the Apex Court and various High Courts, including our own High Court, have explained the circumstances when the exercise of such powers would be justified. Though there cannot be a straight jacket formula, one thing is very clear that it should not be used to cut short the entire process of trial. Sifting and weighing of the evidence is not permissible at this stage but if from a bare perusal of the FIR or the complaint, it appears that it does not disclose any offence or it appears that it is frivolous, collusive, or oppressive from the face of it, the Court may exercise this inherent power to secure the ends of justice. This does not include whether the prosecution is likely to establish its case beyond a reasonable doubt or not or whether the evidence in question is reliable or not or whether on a reasonable appreciation of the evidence produced, the accusation would be sustained or not. It need not go into various aspects in detail but it would suffice to refer a few authorities dealing all these matters in detail, viz, State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335 : (AIR 1993 SC 1348), Mahesh

Chaudhary v. State of Rajasthan (2009) 4 SCC 443, Shakson Belthissor v. State of Kerala and Anr, AIR 2010 SC (Supp) 864, Mosiruddin Munshi v. Md. Siraj, AIR 2014 SC 3352, Krishnanan Vs. Krishnaveni 1997 AIR SCW 950 : AIR 1997 SC 987, Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296, Hamida v. Rashid alias Rasheed, (2008) 1 SCC 474 : (AIR 2007 SC (Supp) 361), Dr. Monica Kumar v. State of U.P., (2008) 8 SCC 781 : (AIR 2008 SC 2781), M.N. Ojha v. Alok Kumar Srivastav, (2009) 9 SCC 682 : (AIR 2010 SC 201), State of A.P. v. Gourishetty Mahesh, JT 2010 (6) SC 588 : (2010 AIR SCW 4386) and Iridium India Telecom Ltd. v. Motorola Incorporated, (2011) 1 SCC 74 : (AIR 2011 SC 20).

12. In the present case, the record reflects that prima facie there is sufficient evidence on record to establish the role of the petitioners and after considering the voice and call records between the petitioners and the deceased, it can not be said that there is no abetment. The compromise between the parties does not show that there was no abetment, the deceased has committed suicide by facing critical situation established by the petitioners. It is not a case where it can be said that from the face of the record, no case is made out against the petitioners, therefore, I do not deem it appropriate to quash the FIR as prayed for. The petition sans merits and deserves to be dismissed and is accordingly dismissed.

(RAJENDRA KUMAR (VERMA)) JUDGE amit

AMIT Digitally signed by AMIT KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001,

KUMA st=Madhya Pradesh, 2.5.4.20=18db6b55824fa1834dc7e61d 06ed3c79a81bc156ec0309c5245d47a 0a52604de, pseudonym=713D9BD68EDDADCD6B 88DA2B1BCDCFC0369478F5,

R serialNumber=62B9B1A094FCDF2F01 07E91326BC51DC9DCF83F25C9D6724 5FE3BCCFD0F2DB67, cn=AMIT KUMAR Date: 2021.12.20 09:51:38 +05'30'